Wang v South West Conveyancing
[2025] VSC 615
•30 September 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 05034
BETWEEN:
| GUILIAN WANG | Applicant |
| v | |
| JASPER TANIA (ABN 29 403 287 723 trading as SOUTH WEST CONVEYANCING) & JAI KAPILA PTY LTD (ACN 610 400 425) | Respondents |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 June 2025 |
DATE OF JUDGMENT: | 30 September 2025 |
CASE MAY BE CITED AS: | Wang v South West Conveyancing |
MEDIUM NEUTRAL CITATION: | [2025] VSC 615 |
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JUDICIAL REVIEW AND APPEALS LIST — Adjournment of hearing because of medical condition — Whether applicant provided with an opportunity to address the Tribunal on its consideration of using powers under s 78 to find that the applicant ‘caused the adjournment’ and that her conduct in doing so unnecessarily disadvantaged the defendants — Whether the applicant afforded natural justice to respond to costs orders and to order striking out claim if order for payment of costs not complied with — Sections 78 and 109 of Victorian Civil and Administrative Tribunal Act 1998 (Vic) — Bell Corp Victoria v Stephenson [2003] VSC 255.
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APPEARANCES: | Counsel | Solicitors |
| The Applicant in person | — | — |
| For the First Respondent | A Gaber | Barry Nilsson |
| For the Second Respondent | A Healer | Legoll Lawyers |
Contents
A.. Introduction
B.. Background
C.. The VCAT proceeding
C.1 Points of claim
C.2 Prior trial listings
C.3 The conduct of the hearing
D.. Consideration - Grounds of Appeal
D.1 Grounds not giving rise to questions of law
D.2 Natural justice grounds
D.2.1 Substantive hearing
D.2.2 Costs hearing – natural justice
D.3 No evidence ground
E... Outcome
HER HONOUR:
A Introduction
The Victorian Civil and Administrative Tribunal (Tribunal/VCAT) made orders on 7 August 2024 that Ms Wang (the applicant) pay the costs of an application to adjourn a hearing in the Civil Claims List, following the hearing that commenced the previous day. The Tribunal also fixed the amount of costs and ordered that unless those costs are paid and an application made to relist the hearing by 7 November 2024, the proceeding be struck out (together the costs orders).
On 18 September 2024, Ms Wang filed a notice of appeal. As the notice of appeal was filed later than the 28 day period provided for in s 148(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act), the applicant requires an extension of time to appeal. If time is extended, then she also requires a grant of leave to appeal. An appeal is limited to questions of law[1] and leave to appeal requires an applicant to establish that the proposed appeal has a real prospect of success.[2]
[1]S 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’); Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; and Alex Hoe v Manningham City Council [2011] VSC 37.
[2]S 148(2A) of the VCAT Act; Red Pepper Property Group Pty Ltd v S 3 Sth Melb Pty Ltd [2019] VSC 41.
The applications to extend time and for leave to appeal together with the proposed appeal were all heard on 30 June 2025.[3] The applicant was self-represented. She used the assistance of a Mandarin interpreter before VCAT and also in this appeal.
[3]For convenience, the proposed appeal will simply be referred to as the appeal.
There are nine questions of law identified in the notice of appeal. Broadly speaking they raised three matters which can be summarised as follows:
a.whether the Tribunal member made factual findings in relation to the costs orders that were not open on the evidence;[4]
[4]Plaintiff, ‘Notice of Appeal’ filed 18 September 2024 (‘Notice of Appeal’), Questions of Law 6.
b.the proper construction and application of the power to award costs provided for in ss 78 and 109 of the VCAT Act;[5] and
[5]Notice of Appeal, Questions of Law 4 and 5.
c.natural justice concerns, broadly in two parts: first, whether the Tribunal conducted the substantive hearing and then the costs hearing with procedural fairness, including whether there was any actual or apprehended bias, whether the applicant was given a fair opportunity to present her case and understand the case against her and whether the Tribunal member provided an appropriate level of assistance to her given her circumstances as a self-represented litigant.[6] The second limb focused on whether the conduct of the other parties gave rise to an unfairness from their non-compliance with orders made in preparation for the hearing or in conduct in the hearing itself.[7]
[6]Ibid, Questions 2, 3, 7, 8 and 9.
[7]Ibid, Questions 1 and 9.
In summary, I have concluded that Ms Wang was not afforded a fair hearing on questions of costs insofar as the Tribunal found that her conduct unnecessarily disadvantaged the respondents leading to the adverse costs order, the calculation of costs thrown away and the striking out of the claim if those costs were not paid by 7 November 2024. Consequently the costs orders will be set aside and those matters remitted to VCAT for determination.
B Background
The applicant had paid a deposit for the purchase of two properties off the plan in Melbourne. A dispute arose when that deposit was forfeited because of her failure to settle the contracts. The first respondent, South West Conveyancing (SWC), is the applicant’s conveyancer for the purchase, and the second respondent (vendor) is the vendor of the properties. First National JXRE, the vendor’s licenced real estate agent, was named as the third respondent.[8] As identified in the document commencing her claim in VCAT, Ms Wang alleges that after she had signed the contracts for purchase in June 2017, the vendor advised of amendments to the plans requested by the water authority in order to accommodate the existence of an easement. Ms Wang did not agree with those amendments as, as I understand it, she says she had not been notified of any easement by the Section 32 statement. She also makes allegation about representations by Jaile Yu, an employee of ‘AusTrump Glen’ in relation to her decision to enter into the contracts. Ms Wang alleges she rescinded the contracts on or before March 2019.[9]
[8]First respondent, ‘Affidavit of Ashlee Briana’ affirmed 6 December 2024, (‘Sherman Affidavit’). First National JXRE did not participate in the hearing before VCAT and is not a respondent in the appeal.
[9]Applicant, ‘Affidavit of Guilian Wang’ affirmed 24 September 2024 (‘Wang Affidavit’) 3.
C The VCAT proceeding
The applicant commenced her VCAT claim on 26 May 2020. Orders were made for steps prior to hearing. The parties exchanged points of claim and defences, discovery, and attended a compulsory conference before the matter was listed for a two day hearing commencing on 3 February 2022. At that time all hearings were conducted by audiovisual link because of restrictions imposed by the Covid pandemic.
C.1 Points of claim
Ms Wang’s points of claim is lengthy and detailed. It comprises 75 numbered paragraphs over 13 pages. It remains unamended since 2020 and is supplemented by further and better particulars that have also been provided.[10] Many of the paragraphs in the points of claim set out conversations, recommendations and interactions between Ms Wang and Jiale Yu. Neither Jiale Yu nor ‘Austrump Glen’ are respondents to the VCAT proceeding and Ms Wang was not proposing to call Jiale Yu as a witness. As such the relevance of those interactions seems largely a matter of background and context.
[10]In response to the first respondent’s request totalling 11 pages and 3 pages responding to the second defendant.
The points of claim that refer to SWC allege it was engaged on 4 May 2017. From that time SWC gave advice on documents provided to it and sent on to Ms Wang documents provided to it by others. It gave specific advice about penalty interest for late payment of deposits, and gave advice concerning the water easement when the amendment was raised. It provided advice to Ms Wang concerning her desire to seek reimbursement of her deposit and compensation. On instructions, SWC informed the vendor that Ms Wang no longer wished to purchase the property. The vendor did not agree to terminate the contract.
10.Ms Wang alleges that as a result of her own researches she understood a number of matters that were inconsistent with what Jaile Yu had told her. She details those matters at [62] of her points of claim. She alleges that on 14 March 2019 she contacted SWC and asked for assistance in solving the problem caused by the amendment resulting from the water easement. She was told that SWC could not provide further service. On 27 and 29 March 2019, Ms Wang claims she again rescinded the contracts by writing directly to the vendor.
11.The points of claim identify Jai Kapila Pty Ltd, the second respondent, as the vendor of the subject property, who had said it was not obliged to terminate the contract. It appears that the points of claim against this respondent alleged that Ms Wang has verbally rescinded the contract.
12.The third respondent, First National JXRE, is mentioned at paragraph [68] of the points of claim as having been contacted on 10 April 2019 and details subsequent correspondence concerning return of the deposits.
13.The points of claim seek relief from all three respondents for return of the deposits and compensation by way of reimbursement of other expenses including application fees and interest.
C.2 Prior trial listings
14.In December 2021, SWC and the vendor each filed an application for security for their costs pursuant to s 79 of the VCAT Act.[11] Given the proximity to the hearing date VCAT advised it was unable to list a hearing of those applications. Both respondents then requested an adjournment of the hearing but were told by registry staff that the hearing would proceed on the listed date in the absence of any information from the Tribunal to the contrary.
[11]SWC filed its application on 21 December 2021 and the vendor on 23 December 2021.
The hearing on 3 February 2022 commenced over audiovisual link. Both the first and second respondents were represented by counsel. There was no appearance by the applicant. The applicant explained this non-appearance as being due to an inability to move from the virtual waiting room into the hearing on the day, as her screen displayed a notice ‘waiting for the hearing to begin’.[12] In her absence the proceeding was summarily dismissed pursuant to s 75 of the VCAT Act.
[12]Applicant, ‘Outline of Submissions’ filed 6 January 2025, (‘Applicant Outline of Submissions’) [17].
16.The applicant was ultimately successful in having her claim reinstated and successfully resisted the applications for security for costs and an application by the defendants for their costs thrown away from the 3 February 2022 hearing. Having failed to resolve at subsequent compulsory conferences, the hearing was relisted for 5 August 2024.
17.Three matters in the preparation for the new trial date warrant mention at this stage.
18.Firstly, the applicant’s health. The applicant has suffered from intermittent short term dizziness for over 20 years. The risk associated with this was said to be short periods of a ‘mental blank’ without ongoing impairment of thinking, and a fall risk associated with a period of mental blank. This had caused a request by the applicant to attend the August 2024 hearing via audiovisual link from China. The plaintiff wrote to VCAT on 16 May 2024 seeking information as to the potential for arranging an online hearing if the dizziness continued. This was in the context of a longer – 30 second - period of dizziness occurring in 2022.
19.VCAT responded on 1 July 2024 indicating that ‘If you decide you are unable to attend in person you will need to provide a medical certificate’. The original email of 16 May and VCAT’s response were copied to all parties. Ms Wang then underwent an MRI and obtained a medical certificate on 7 and 8 July respectively and sent translations to VCAT on 9 July 2024. She did not copy in the defendants because, she said, the email contained personal medical information and she included a confidentiality statement requesting that her medical information remain confidential if possible. Although the request referred to VCAT policies and regulations, it did not specifically refer to particular provisions.
20.The medical report provided said that she should avoid ‘going out alone, climbing and driving’.[13] VCAT made an order on 23 July 2024 (the 23 July order) refusing the application for a zoom hearing and requiring the applicant to attend in person.
[13]Wang Affidavit, Peking University International Hospital Outpatient (Emergency) Medical Records, 28.
21.A party is able to apply for confidentiality of certain material contained in Tribunal files. VCAT’s website provides instructions as to making applications for information to be kept confidential. [14] It notes that medical treatment typically falls into a defined category of confidential information. Ms Wang provided an email to VCAT dated 9 July 2024 which attached her application for confidentiality as to her ‘health information’ relied on to request leave to appear remotely at the hearing. VCAT did not notify an outcome of the confidentiality application.
[14]‘Apply for confidentiality’ accessible at
22.It may be that the Tribunal forwarded the original request of 16 May 2024, but not the medical reports, to the respondents. The 23 July order and its reference to the medical material was provided to the respondents.[15] The Tribunal did not appear to deal with the request for confidentiality of the medical material made by Ms Wang when she provided the medical documents.
[15]Sherman Affidavit [33]. The first respondent’s affidavit material records the making of the 23 July order and there was no suggestion by the second respondent, either within their submissions filed 31 January 2025 or at the hearing, to the contrary.
23.With respect to the application to attend by audiovisual link the ‘Background’ accompanying the 23 July order, stated:
The medical report does not state that the applicant is unable to travel by plane to Australia, it states that the applicant should not drive, go out alone, or climb. The report also states that there is little change from previous images. Accordingly, the request for a Zoom hearing is refused, particularly because of the length of the hearing, the need for the Member to work with parties with substantial documents and the use of interpreters.[16]
[16]Wang Affidavit, 29.
24.Ms Wang therefore attended in person eleven days later in compliance with this order.
25.Secondly, the member to hear the matter was reallocated shortly prior to the hearing. On Friday 2 August 2024, before the hearing due to commence on 5 August 2024, the Tribunal emailed the parties that the member assigned could not preside. Accordingly the matter was listed for a further compulsory conference on 5 August 2024 with the hearing then to commence on 6 August 2024 before Acting Senior Member Knights.
26.Thirdly, a potential dispute arose about the provision of documents. On 24 July 2024, SWC emailed a large bundle of documents to VCAT and copied to all parties. The documents were described as ‘translated versions of the documents the first respondent intends to rely on during the hearing’.[17] SWC said these were translations of documents previously produced by Ms Wang. Ms Wang responded the next day objecting to the documents being considered during the hearing due to SWC non-compliance with the timetabling orders and said further she was unable to download the documents until 30 July 2024. Ms Wang’s affidavit exhibits a table to demonstrate that there is a variation between the documents she previously provided and intended to rely on and the documents included in the bundle sent by SWC on 24 July 2024. She also referred to other documents sent by the second defendant on 6 August 2024. She submitted that she did not have sufficient time to read and understand how those documents might be used in the hearing. Prior to the hearing the respondents had also raised non-compliance by the applicant with orders concerning production of documents.[18] As things transpired none of the objections to reliance on documents were dealt with during the hearing
[17]Wang Affidavit, 36.
[18]See the matters identified in the Order of Acting Senior Member A Moon (VCAT, 23 July 2024).
C.3 The conduct of the hearing
27.As a preliminary matter, Ms Wang raised the question of confidentiality of her personal details in line with VCAT policies. Ms Wang was directed to s 146 of the VCAT Act and the Open Courts Act 2013 and the matter left undecided. Then the operative points of claim and defences were identified. A description was provided to Ms Wang of the process: that she would give her evidence first and may be cross -examined. It was explained that she bore the onus of proving her case. The respondents raised housekeeping matters. No party raised issues as to compliance with orders in the production of documents before evidence commenced, although Ms Wang did make an indirect reference a translated document that was filed late only about 10 days earlier.
28.Ms Wang then commenced her evidence in chief and gave evidence largely in narrative form. In the course of the first day hearing there were concerns expressed by counsel for SWC and the Tribunal that the evidence was not focused on relevant matters and was likely to exceed the available time.
29.On 6 August 2024, after her evidence had commenced, the applicant was asked to explain why her evidence concerning Jiale Yu’s words and actions was relevant as he was not a party. The Tribunal recommended that she focus on the evidence concerning the reasons why SWC and Jai Kapila were obliged to return her deposit or pay her compensation. The Tribunal noted that each respondent had filed defences to the points of claim and written outlines as to their position, so said the issues in dispute ought be clear to Ms Wang.[19] The Tribunal requested Ms Wang to organise her case overnight so that she could finish her relevant evidence by lunchtime on the second day of hearing.
[19]Transcript of proceedings, In the Matter of Guilian Wang and South West Conveyancing, (VCAT, C3264/2020, Senior Member K Knights, 6 August 2024) (‘VCAT Transcript 6 August’).
30.On the following day, Ms Wang informed the Tribunal that she had felt dizzy on the way to the Tribunal. She nevertheless was ready to proceed and said she had prepared a summary overnight in light of the Tribunal’s comments. She was reminded to concentrate on the case against the three named respondents.[20] From that time very little further evidence was given by Ms Wang and much time was spent to assist her to understand and focus on the claim contained within her points of claim. Later in the morning Ms Wang again mentioned feeling dizzy and asked whether if matters are not in the points of claim, she could remedy that. This lead to a discussion about amendment, the likely opposition to any amendment, and the consequences of amending a claim mid-hearing.
[20]Transcript of proceedings, In the Matter of Guilian Wang and South West Conveyancing, (VCAT, C3264/2020, Senior Member K Knights, 7 August 2024) (‘VCAT Transcript 7 August’), 5 – 6.
31.Ms Wang attempted to continue her evidence on the morning of 7 August. In doing so at one point when she was endeavouring to explain the relevance of stamp duty to her claim for loss and damage the following exchange occurred between the Tribunal, Counsel for SWC and Ms Wang:
Senior Member [to SWC Counsel]: Do you understand this is part of the case put against you? I don’t understand this to be part of the case put against you.
Ms Gaber: No, I don’t – –
Senior Member: It’s just not part of the case that is put against the Respondents, Ms Wang.
Ms Wang: Because if this is – – she knows the people in their then stamp duty – – the precise number of –– the amount of the stamp duty cannot be calculated, so that is related to my contract and the settlement.
Senior Member: I just don’t understand – –
Ms Gaber: Member - - ?
Senior Member: Sorry, Ms Gaber, if you can assist?
Ms Gaber: Ms Wang is basically seeking to take every single point and go through every single thing that she can find an anomaly with, in the hope that something might be there, so that’s the big picture of how we see Ms Wang’s case.[21]
[21]VCAT Transcript 7 August, 13–14.
32.In the ensuing discussion concerning the signature on the contract, Ms Wang made clear that she had not said she wanted to amend her case.[22] She was given an opportunity to consider what she wanted to do. At that stage Ms Wang indicated she felt dizzy and unfamiliar with the procedures.[23]
[22]Ibid, 15–16.
[23]Ibid.
33.Before giving Ms Wang time to consider her position, the Tribunal heard from of the two respondents as to their position on any application to amend that may be made. Both respondents expressed forceful opposition to any ‘proposed amendment’ application.[24] When pressed to decide on her course of action Ms Wang said she had not wasted time but followed VCAT’s instructions, expressed difficulty in making a decision and expressed her concern as to costs liability. She mentioned again feeling dizzy and that she had previously requested VCAT to permit her to appear by videolink which was refused.[25]
[24]Ibid, 17–19.
[25]VCAT Transcript 7 August, 21.
34.The Tribunal explained s 109 of the VCAT Act, and the circumstances in which the Tribunal might order one party pay the costs of another party, including when a party ‘has caused an adjournment’.[26] The Tribunal explicitly foreshadowed that the respondents would seek costs if an amendment application led to an adjournment. [27] After taking lunch to consider the position Ms Wang was still unable to decide how to proceed and was informed that the claim in its present form would continue.[28]
[26]Ibid, 25.
[27]Ibid.
[28]Ibid, 28.
35.The Tribunal eventually said through the interpreter:
What are you seeking to do, Ms Wang? I can’t even ask the Respondents what their instructions are if I don’t know what you are seeking to do, Ms Wang’.[29]
[29]Ibid, 30.
36.At this point Counsel for SWC indicated she understood an application was being made to adjourn on the grounds of dizziness and proceeded to set out opposition to an application on that basis. The submission was made that Ms Wang was ‘not taking her case seriously’.[30] The second respondent was unclear on the application that was being pressed but also expressed opposition to any adjournment. The Tribunal then informed Ms Wang of powers under s 78 of the VCAT Act.
[30]Ibid.
37.Reference was made to medical information sent earlier to the Tribunal. Ms Wang confirmed she had sought confidentiality when she sent the medical report to the Tribunal and for this reason had not copied the information to the respondents. The Tribunal confirmed that no order had been made for confidentiality and Ms Wang agreed that the reports could be disclosed to the respondents. Ms Wang submitted, in light of the reports and the order of VCAT that she was required to attend, that she took ‘a risk of any complications to come to this hearing’,[31] and concluded that ‘I have only one way to go, that is to go ahead’. The respondents both opposed an application to adjourn upon medical grounds and submitted that the grounds were not genuine.
[31]Ibid, 32–33.
38.The Tribunal’s oral ruling was:
Ms Wang has made an application for an adjournment on medical grounds. …I find that the medical reports sent to the Tribunal do support Ms Wang’s submission that she suffers dizziness... I note before this morning’s hearing, Ms Wang sent an email at 10.27 am where Ms Wang said she had a ‘tizzy’ [dizzy spell] on the way and would be late a few minutes… It has been claimed to me that Ms Wang has struggled with this case all morning.
It has been claimed that Ms Wang encountered difficulty in conducting her case alone this morning. However Ms Wang did not refer to the medical reports or make an application for an adjournment on medical reasons until this afternoon, which is the afternoon of the second day of the hearing. Having observed the difficulty that Ms Wang is encountering in conducting her case today, together with the medical advice, I find that it is unfortunately necessary to adjourn the case. I find that it is Ms Wang’s conduct that has caused this adjournment, and the conduct is that Ms Wang has not prepared for this case in a way that catered for her known medical problems. Whilst in July Ms Wang was told not to go out alone, Ms Wang has presented herself to the Tribunal to conduct this case alone. It is because Ms Wang is not medically fit, and it was known to her that she was not medically fit that Ms Wang can’t conduct this case, and this has caused the adjournment. I find that under s 78 of the VCAT Act that Ms Wang has unnecessarily disadvantaged the First and Second Respondent by causing this adjournment. [32]
[32]VCAT Transcript 7 August, 42–43.
…
39.The findings and orders are recorded:
Findings:
A. On the afternoon of the second day of hearing (7 August 2024), the applicant made an application for an adjournment on medical grounds.
B. On 8 July 2024, the applicant was given medical advice that for the reasons set out in the medical reports, the applicant should not leave home alone.
C. Notwithstanding that medical advice and without disclosing that medical advice to the respondents, the applicant has travelled from China to Australia and endeavoured to conduct the case alone until on the second day of hearing the applicant found she was medically unable to do so and applied for this adjournment.
D. The applicant is not medically well enough to proceed with her case and for that reason the hearing would not be a fair hearing and must be adjourned.
E. The applicant has caused this adjournment.
F. The applicant’s conduct in causing this adjournment unnecessarily disadvantages the first and second respondents that had prepared for the five day hearing.
G. It is fair to make the orders set out below under s 78(1)(c), s 78(2)(c), s 109(2) and s109(3)(a)(iv) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) that require the applicant to pay the first and second respondents costs thrown away by reason of the adjournment before the hearing is re-listed.
H. At the hearing, the first respondent’s costs thrown away were calculated to include the costs of the witness summonses that were returnable at 2.15pm on 8 August 2024. However, those costs may be saved by adjourning the witness summonses. It is appropriate to adjourn the witness summonses and save those costs from being thrown away.
I. It is fair to fix the first respondent’s costs thrown away by reason of the adjournment at $24,700.00; inclusive of finding that the nature and complexity of the proceeding make it appropriate that the first respondent has counsel and an instructing solicitor.
J. It is fair to fix the second respondent’s costs thrown away by reason of the adjournment at $24,700.00; inclusive of finding that the nature and complexity of the proceeding make it appropriate that the second respondent has counsel and an instructing solicitor.
K. It is fair to make the orders set out below under s 78(1)(c) and s 78(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) that require the applicant to have paid the costs and made application for the re-listing of the hearing by 7 November 2024 with the consequence that if the applicant does not do so, the proceeding will be struck out.
Orders:
…
2. By 4:00pm on 7 November 2024, the applicant must:
(a) pay the first respondent’s costs thrown away by reason of the adjournment fixed in the sum of $24,700.00;
(b) produce to the principal registrar evidence of payment of the first respondent’s costs thrown away by reason of the adjournment fixed in the sum of $24,700.00 (with a copy to all parties);
(c) pay the second respondent’s costs thrown away by reason of the adjournment fixed in the sum of $24,700.00;
(d) produce to the principal registrar evidence of payment of the second respondent’s costs thrown away by reason of the adjournment fixed in the sum of $24,700.00 (with a copy to all parties);
(e) request the principal registrar re-list the matter for hearing.
…
D Consideration - Grounds of Appeal
D.1 Grounds not giving rise to questions of law
40.I accept the defendants’ submission that at least some grounds do not raise questions of law. Both Questions 1 and 9 raise matters concerned with the merit of the Tribunal’s actions.
41.Question 1 is in the following terms:
Did VCAT err in law in conducting the hearing and making the costs order … under the circumstances that the respondents did not comply with the earlier order to provide evidence, provided misleading or unfounded information to VCAT, and other conduct… abusing the procedure, prejudicing or even discriminating me for my poor English listening and speaking and being self-represented?
42.Question 9 also concerns the respondents’ conduct and the reason for the adjournment asking
Is that the first and second respondents’ violation of [the earlier] VCAT order … prejudiced me the real reason caused the adjournment of the hearing? Should the first and second respondents pay my costs thrown away of fly tickets and hotels?
To the extent that Question 1 also raises natural justice considerations it is considered below. However, another issue within the compound nature of Question 1 is whether there was some other and different basis upon which the Tribunal should have acted – namely conduct of the respondents. This ground would involve an inquiry into the merit of compliance with orders for production of documents made before the hearing. Both parties raised issues of compliance in advance of the hearing, although neither clearly articulated this as a preliminary matter. The respondents alleged Ms Wang’s documents were provided to its solicitors by the Tribunal on 15 July 2024, almost three months late.[33] Ms Wang alleges she received a large bundle of documents on 24 July 2024 that were provided late and compromised her preparation for the hearing.[34] The Tribunal was not called upon to determine either of these questions of non-compliance. To the extent that Question 1 seeks to open this issue for determination on its merits, it discloses no question of legal error.
Question 9 also seeks to revisit the merit of, and reason for, the adjournment on a basis not considered by the Tribunal. In effect it asks this Court to exercise a costs discretion on a basis other than that decided by the Tribunal. This question does not raise an issue amenable to appeal on a question of law.
D.2 Natural justice grounds
[33]First defendant, ‘First Defendant’s Outline of Submissions’ filed 31 January 2025.
[34]Applicant’s Outline of Submissions [20]–[23].
45.The respondents accept that the question of whether procedural fairness was afforded to Ms Wang is properly a question of law. As mentioned earlier the grounds raise procedural fairness in two contexts: the hearing as to the claim itself and the hearing on the questions of costs.
46.Questions 1 and 2 raise procedural fairness in the substantive hearing. Question 2 is in these terms:
Did VCAT err in law for ‘prejudice’, ‘bias’, having denied me of procedural fairness and natural justice, breaching section 97 and 98(1)(a) of VCAT Act?
47.The balance of the questions raise procedural fairness specific to the costs hearing.
48.Procedural fairness requires the Tribunal to give the parties a reasonable opportunity to present their case and to know the case to be advanced by the other parties. In each case a party is to have a reasonable opportunity to advance submissions in support of their case and in opposition to the case against them.[35]
[35]Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216 (‘Kyriazis’) [63].
49.Where a party is unrepresented the Tribunal will need to assess the capacity of the unrepresented litigant to formulate and articulate the case they wish to present.[36]
[36]VCAT, Practice Note PNVCAT3: Fair Hearing Obligation, 8 December 2022.
50.Secondly procedural fairness requires a decisionmaker to act impartially and to appear, to a fair minded observer to act impartially.[37] The test is robust. A Tribunal does not act impartially merely by engaging in questioning of the submissions made or expressing tentative views in the course of debate. In considering an application for bias or apprehended bias the test is applied by considering whether the line has been crossed so as to demonstrate a closed mind.
[37]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
D.2.1 Substantive hearing
51.Ms Wang submits that, in the substantive hearing the Senior Member indicated at times that she was unable to understand Ms Wang’s submission. She says that the Tribunal member asked counsel for SWC to assist. Ms Wang submitted counsel ‘understood what I said and gave her submission directly’[38] to the Tribunal. Ms Wang submitted that this was inappropriate in an adversarial proceeding.
[38]Applicant’s Outline of Submissions [81].
52.Although the Tribunal sought assistance in understanding the submission from opposing Counsel on one occasion, as outlined above at [31], what was provided was non-responsive to that request. The response was a submission at large in opposition to the way in which the applicant was attempting to present her case. Notwithstanding that, the Tribunal remained focused on making sure it understood the way in which Ms Wang sought to link evidence about her signature with her points of claim and with the loss caused.
53.In circumstances where an interpreter is present to assist with language matters and clarification of meaning, I can appreciate why a self-represented litigant might see the exchange outlined above as a request for assistance to an adversary as undermining impartiality. However, in context I am not persuaded that the Tribunal was inviting counsel to advance Ms Wang’s submissions and in any event Counsel did not attempt to do so. Rather the Tribunal asked, albeit in formal rather than plain language, whether SWC understood from the points of claim included the matters Ms Wang was speaking of.
54.In discharging its duty to assist a self-represented litigant to understand the process, the Tribunal identified the points of claim document as setting out the way in which an applicant will say that she has suffered loss and damage from the way a respondent has acted, or failed to act. This is intended to allow a response to be prepared and so the issues known to the other party. The Tribunal did on many occasions attempt to explain this to Ms Wang. In my view the question put by the Tribunal to SWC’s counsel was not inappropriate.
55.The question of whether the Tribunal has met its obligation to provide assistance is answered by reference to two principles. First the assistance is to ensure fairness so as to avoid a practical injustice, recognising that an unrepresented litigant lacks relevant legal skill and ability, and lacks objectivity.[39] Therefore assistance may require explanation as to process and as to legal concepts in simple and plain language. Second, the Tribunal must remain impartial and the assistance cannot cross a line into providing advice to an self-represented litigant.
[39]Kyriazis [63].
56.Ms Wang remained polite and courteous throughout the hearing. She was and is a self-represented litigant in a jurisdiction where it is anticipated that litigants will represent themselves, but on occasion be opposed to legal practitioners.[40] The Tribunal explained matters to Ms Wang and gave her time to consider her position. Although she often communicated being unable to decide on a course of action after having been given time, ultimately she endeavoured to proceed as best she could. At times she did make requests for further information that bordered upon requests for advice from the Tribunal. The Tribunal appropriately declined to provide advice beyond its obligation to give assistance.
[40]VCAT Act s 62.
57.The question of adequacy of assistance is fact specific. On the present facts, in the substantive hearing thus far, the Tribunal did take steps to discharge that obligation, although it appears that not everything that transpired was interpreted and not all of the information was well understood by Ms Wang.
58.One further important matter in considering the adequacy of the Tribunal’s assistance on the present facts is the point at which Ms Wang’s health condition intervened. She had not yet completed her evidence in chief. Indeed as the Tribunal observed, it was before she had addressed key relevant matters in her evidence. In those circumstances it is premature to assess whether she has had an opportunity to fairly present her case. She has been provided with assistance to understand the need to focus on the nature of the case she must prove against the named respondents.
59.In my view, comments of the Tribunal before the adjournment was decided concerning the risk of costs were not statements of prejudgment or leading to apprehension of a closed mind. Rather they were statements consistent with the obligation to inform a self-represented litigant of the likely, if not probable consequences of an application to amend points of claim made midway through an applicant’s evidence in chief at hearing. The grounds alleging a lack of procedural fairness because of a failure to provide appropriate assistance to Ms Wang as a self-represented litigant are not made out.
60.Given the incomplete nature of the substantive case before the Tribunal there is nothing in the conduct of the hearing thus far that would give rise to a failure to permit Ms Wang to understand and present her case on resumption of the part heard hearing.
61.The other limb of procedural fairness in the substantive hearing is that of an impartial Tribunal whose conduct does not give rise to an apprehension of bias.
62.Ms Wang submits that by raising the possibility of an adverse costs order, and by hearing the position of the respondents intending to seek costs as it did, the Tribunal might raise in the mind of a fair minded observer an apprehension that the Tribunal might have predetermined the question. The Tribunal had an obligation to provide information as to the possible, and even likely, consequences of an application to amend points of claim at the hearing. To do so is not necessarily to exhibit prejudgment of matters.
63.In my view the manner in which the substantive hearing was conducted prior to it being adjourned did not give rise to an apprehension of bias because the information was appropriately provided appropriately in the course of informing a self-represented litigant to inform them of possible consequences of a course of action. The comments were not made with any expression of intent to act in a particular way.
D.2.2 Costs hearing – natural justice
64.That leaves the question of whether natural justice was afforded in determining the costs consequences of the adjournment application that was granted.
65.The costs jurisdiction of VCAT is governed by the VCAT Act and in particular Division 8 of Part 4. The starting point, established by s 109(1) is that subject to the matters in Division 8, each party is to bear their own costs.
66.Section 109(2) empowers the Tribunal to depart from this position and order a party pay all or a specified part of the costs of another party in a proceeding. However, certain matters must be established in order to enliven the discretion to do so. Section 109(3) provides that an order under s 109(2) may be made only when the Tribunal is satisfied that it is fair to do so, with the Tribunal having regard to the broad matters listed in subparagraphs (3)(a)–(e). ‘Fair’ addresses circumstances that are just and appropriate.[41] Where the Tribunal proposes to make an order under s 109(2) before the end of the proceeding, as here, it may require compliance with the order before the proceeding continue.[42]
[41]Filippou Management Pty Ltd v MREEF Project Company No. 11 Pty Ltd & Ors (No 2) (Civil Claims)
[2010] VCAT 1261. See also De Simone v Legal Services Board & Ors [2015] VSC 286; De Simone v Legal Services Board (Costs) [2017] VSC 644.
[42]VCAT Act s 109(6).
67.The complaint of a failure to accord a fair hearing on the questions of costs that were determined does not traverse whether there was a legal error in the substantive discretionary decision reached. Rather it concerns the conduct of the hearing itself.
68.The starting point is that the contested issue of costs occurred immediately following the grant of the adjournment. On the one hand the Tribunal has clearly accepted that Ms Wang’s health condition, as it manifested throughout that day, made it appropriate to adjourn the hearing. It specifically found that because the applicant was not medically well enough to proceed, the hearing would not be a fair hearing. However, the Tribunal then proceeded to hear and determine what was described as a ‘complex’ issue of costs thrown away having adjourned the proceeding part heard before the same member. Continuing the hearing put Ms Wang in a position of having to resist not only an argument as to her liability for costs thrown away, but also respond to the decision that the quantum be fixed and to the calculation of that quantum, as well as the imposition of a condition under s 78 that tied payment of the fixed costs to the continuation of her claim on its merits.
69.As can be seen from the oral ruling, outlined above at [38], the ruling dealt simultaneously with the application to adjourn and the Tribunal’s belief that s 78 was engaged to make an adverse costs order. Having closely read the transcript prior to that ruling, from the time that the Tribunal was alerted to an application to adjourn on the basis of Ms Wang’s medical condition, I cannot see anything that alerted Ms Wang specifically to the prospect that if the medical condition that precipitated the need for an adjournment was genuine, it may nevertheless be considered to give rise to an adverse costs order under s 78. The medical reports provided earlier were brought to the attention of the Tribunal member and the respondents and discussed immediately before the ruling on the adjournment.
70.Section 78 provides:
Conduct of proceeding causing disadvantage
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as –
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b)failing to comply with this Act, the regulations, the rules or an enabling enactment; or
(c) asking for an adjournment as a result of (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the Tribunal; or
(f) vexatiously conducting the proceeding; or
(g) failing to attend mediation or the hearing of the proceeding.
(2) If this section applies, the Tribunal may –
(a)order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or
(b) if the party causing the disadvantage is not the applicant
….
(c) make an order for costs under section 109.
(3)The Tribunal’s powers under this section are exercisable by the presiding member.
71.The respondents contended that there was no obligation to adjourn the question of costs, and that Ms Wang was afforded an opportunity to make submissions which she exercised. The second respondent, supported by the first respondent, relied amongst other things on the following exchange as to an opportunity for Ms Wang to meet the case against her.
Tribunal: OK, so, Ms Wang, do you want to respond to that? The Second Respondent… are saying that there costs thrown away by reason of the adjournment is $25,270.
An exchange with the interpreter follows
Ms WangSo, this is the second hearing. In 2022 on the third and fourth of February we have a meeting on Zoom. Because there was an error in my computer or Zoom I didn’t – I wouldn’t be able to log in, so I was waiting on the computer. I understand the First and Second Respondents prepared for their case very well.
TribunalMs Wang I will just stop you. So what you need to address are the actual costs, the quantum of costs.
Ms WangI just want to say they did not need to spend that much time to prepare for the case.
Tribunal OK Anything else?
…..[Ms Wang responds disputing need for so much preparation]
Tribunal No need. Anything else in relation to the quantum?
Ms WangI’m not really sure how they calculated this figure. And I did apply … for a video conference on Zoom for today’s hearing … but it was not approved, and I have overcome a lot of difficulties to come here, but I didn’t actually predict that – or my dizziness is not very predictable.
72.That exchange occurred after the ruling as to costs and in the context of the further hearing conducted to fix costs. It does not support an argument that Ms Wang was afforded an opportunity to address an adverse costs order under s 78 when seeking an adjournment on medical grounds before the ruling was made.
73.While the Tribunal did raise s 78 with Ms Wang earlier, it was in response to submissions opposition to adjournment on any basis.[43] That discussion and the information provided about the powers available under s 78 occurred at a time when the basis of any application that might be made by Ms Wang was not entirely clear[44] and before time when the medical material that she had previously forwarded to the Tribunal was brought to its attention and disclosed to the respondents. They then submitted that the medical information did not disclose any reason why Ms Wang could not proceed with the hearing and that the medical reason for the adjournment was not genuine. The application of s 78 based upon those medical reports and the prospect that Ms Wang acted in ignorance of this medical advice, as found and relied on by the Tribunal to engage s 78 was not raised with her prior to the oral ruling.
[43]Including at VCAT Transcript 7 August 46-47.
[44]Ibid.
74.Where, as here, the Tribunal relies on conduct falling within s 78(1)(d) to make orders, attention focuses on conduct: is the party ‘conducting the proceeding in a way that unnecessarily disadvantages another party…’. In Bell Corp Victoria v Stephenson,[45] Ashley J identified matters that must be considered when exercising the discretion in 78(2). Those matters, although not exclusive, are described as:
*The subject matter of the belief formed for the purpose of sub-s(1)
*The nature of the power conferred by sub-s(2) in the context of the armoury of powers conferred upon the Tribunal by ss 75-77. By this I mean, particularly, that s 78(2) operates in circumstances which at least do not require that the proceeding be frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process; and which at least do not require that the circumstances demonstrate a want of prosecution. Put another way, the subsection contemplates the making of an order with very serious consequences in circumstances that very probably would not fit the templates set up by s 75 and 76. While it can rightly be said that the creation of such a remedy in the situation contemplated by s 78(1) shows that an intention that orders be made in some cases where the situation exists, it should also be firmly concluded, in statutory context, that the remedy should be of last resort and not first resort.
*The requirement imposed by s 97. … The ultimate aim of the Tribunal, as much as of a court, must be the attainment of justice in respect of the issues joined. [46]
*The requirement imposed by s 98(1)(a), to the extent that a party should ordinarily be given an opportunity to be heard on the merits. That opportunity is not absolute. It may be lost without breach of the rules of natural justice. But the consequence that the making of an order under s 78(2) will deprive a party of an opportunity to be heard upon the merits is surely relevant to the exercise of the discretion of whether to so order.
*The power to make costs orders conferred by s 109(2), (3) and 78(2)(c). The last mentioned, it appears, might be exercised even though no order is made under s 78(2) (a) or (b).[47]
[45][2003] VSC 255 (‘Bell Corp’).
[46]Insofar as this requirement discussed the interests of case management, it pre-dates Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. Later cases approving these matters have qualified the expression of the importance of case management principles in considering the attainment of justice between the parties. See, for example, Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCA 294 and Primrose Meadows Pty Ltd v River View Pty Ltd [2017] VSC 487.
[47]Bell Corp [51] (Bell J). See also ACN 115 918 959 (Formerly known as PEARL HILL PTY LTD) v Alex Moulieris [2022] VSC 555
75.The Tribunal found that s 78(d) was engaged by conduct ‘that Ms Wang has not prepared for this case in a way that catered for her known medical problems’[48] as described above in the oral ruling. No mention is made, and indeed it is not entirely clear whether the senior member was aware at the time of ruling, that the medical reports from July 2024 were obtained for the purpose of an application to attend online which was refused. Given the last minute change in allocations it is understandable that the 23 July orders, if not specifically drawn to the member’s attention, may be overlooked in what was a challenging hearing. Ms Wang did attempt to explain her application to attend online[49] and this led to the Tribunal being made aware of the medical reports, but the 23 July orders themselves were only obliquely referred to by Ms Wang in the context of ‘a risk in attending in person’ to comply with that order.
[48]VCAT Transcript 7 August, 43.
[49]VCAT Transcript 7 August, 36.
76.In my view, Ms Wang did not have a real opportunity to explain that her attendance came about in compliance with the 23 July orders that were not drawn to the Tribunal’s attention. Rather the Tribunal in oral reasons relied on those reports to find that Ms Wang acted as she did in light of medical advice known to her. That finding underpins the Tribunal’s conclusion that she acted unnecessarily to disadvantage. Insofar as the medical reports had not been disclosed to the respondents, no reference was made in the ruling to the request for confidentiality, properly made, or the absence of any decision on that application.
77.In the subsequent hearing to fix the quantum of costs Ms Wang was not provided with an opportunity to understand and consider either the basis of the costs, the calculation of the claimed quantum, or the identification of costs thrown away distinct from other costs of the preparation and hearing. On the information provided to the Tribunal by way of estimates, it would present some challenge to provide an immediate response even to a legally trained person.
78.The parties did not squarely address the materiality of any denial of natural justice. In my view, had Ms Wang been given an opportunity to address the prospect that in attending the hearing in person, knowing of the information contained in the medical reports provided to VCAT, might give rise to an adverse finding against her under s 78, there was a real likelihood that the discretion to act under s 78 if exercised at all, or exercised under s 109, might have been exercised differently.[50]
[50]See, for example, Minister for Immigration and Border Protection v SZMTA {2019] HCA 3.
79.In my opinion the plaintiff has made out a denial of natural justice in the conduct of the hearing determining questions of costs, that warrants the setting aside of the costs orders.
80.Although this is sufficient to dispose of the appeal, it is appropriate to make some brief remarks about the further question of the proper construction of s 78. Ms Wang alleges an error in failing to distinguish her conduct in ‘asking for an adjournment’ from conduct ‘causing an adjournment’. Clearly, a distinction is made in the section. The circumstances in which s 78 is enlivened when a party asks for an adjournment is limited by the matters in subsections (a) and (b). By contrast subsection (d) focuses on the conduct that has led to the adjournment, rather than the person requesting it. Drawing a connection between the conduct relied on and the unnecessary disadvantage caused, is a key element of the Tribunal forming the belief that enlivens the discretionary power. Although the Tribunal identified Ms Wang’s known health condition as causing the adjournment, it is not entirely clear how her conduct, in light of that longstanding medical condition and the steps she took to raise it with the Tribunal, amounts to conduct that has unnecessarily disadvantage. The Tribunal’s belief must hold, and so identify, that disadvantage arising from conduct causing an adjournment has been unnecessary. This may require identification of steps that could or should have been taken to avoid the need for adjournment.
D.3 No evidence ground
81.I will also deal briefly with Question 6 which asks:
Did VCAT err in law in making the cost order … based upon factual findings not open on the doctor’s advice on my medical certificate, in contrary to its own order… dated 23 July 2024, for my conducts complying with its order C3264q-2020?
82.The medical information provided to VCAT, initially in support of a request to appear by audiovisual link and then at the hearing to support an adjournment on health grounds, shows that Ms Wang was provided with advice recommending that she not go out alone. While the Tribunal took a different view of that medical evidence on the adjournment application to the application to appear by videolink, it does not follow that there was no evidence upon which the application for adjournment on health grounds could be made. The plaintiff doesn’t seek to challenge the decision to grant the adjournment only that there was no evidence on which the costs orders could be made.
83.Relevant to the costs discretion exercised as a consequence of the adjournment application, the Tribunal had the applicant’s own evidence at the commencement of the hearing on the 7th August that she was feeling dizzy and that as a result she would need to speak slowly and quietly.[51] This had also been communicated to the Tribunal by email and was repeated a number of times in the course of evidence that day. The Tribunal’s oral ruling also made reference to its own observations of Ms Wang, noting the difficulty Ms Wang was encountering conducting her case on 7 August. Therefore there was evidence upon which the Tribunal accepted a health reason to adjourn the hearing.
[51]VCAT Transcript 7 August, 5.
84.That evidence was sufficient to enliven a costs discretion. It was for the Tribunal considering all matters relevant, and none that were irrelevant, to determine, as a matter of discretion, the appropriate costs orders at the conclusion of submissions by the parties. Having determined to set aside the costs orders, it follows that the discretion falls to be exercised again upon such evidence as will be before the Tribunal.
E Outcome
The plaintiff’s submissions outlined the evidentiary basis for not meeting the 28 day time limit for filing her Notice of Appeal. She attempted to file a document on RedCrest within time but the filing was refused. It was accepted on 18 September 2024, eight days after the deadline but without reference to the earlier filing attempt. The late filing is not due to any delay on the part of the applicant and no prejudice is raised by the defendants.
86.In the circumstances, it is appropriate to grant Ms Wang an extension of time for filing her application for leave to appeal. For the reasons outlined above, an extension of time would not be futile. The appeal has a real prospect of success. I will grant leave to appeal and allow the appeal on the grounds that there has been a denial of procedural fairness in the hearing determining the costs of the adjournment that was granted.
87.The question of costs and, in particular the satisfaction of matters that engage s 78 and the exercise of the discretion where that provision is engaged is to be remitted to the Tribunal.
88.Subject to hearing from the parties, the orders I propose are:
1Pursuant to s 148(5) of the VCAT Act, the applicant is granted an extension of time to file a notice of appeal to 18 September 2024.
2Pursuant to s 148(2A) of the VCAT Act, the applicant is granted leave to appeal and the appeal allowed.
3Orders number 2, 3, 4, and 8–11 of VCAT order made 7 August 2024 are set aside.
4The questions of costs consequent upon the adjournment of the hearing part-heard are remitted to VCAT for determination.
89.Ms Wang is self-represented. She is not therefore entitled to recovery of costs as recompense for her time spent on this appeal, save for expenses incurred.[52] Subject to hearing from the parties I propose ordering that any disbursements by way of court fees and the like incurred by Ms Wang associated with the conduct of the appeal be paid by the respondents. Those expenses will need to be itemised and provided to the respondents for comment. Any dispute concerning this or other matters concerning the appropriate orders in this court as to costs or otherwise are to be the subject of written submissions limited to 3 pages and, subject to leave to address orally, will then be determined on the papers.
[52]Cachia v Haines (1994) 179 CLR 403 [10].
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