JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF JUDGMENT:	22 June 2020
CASE MAY BE CITED AS:	Weber v Carkeek
MEDIUM NEUTRAL CITATION:	[2020] VSC 366

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ADMINISTRATIVE LAW – Appeal from orders of Victorian Civil and Administrative Tribunal in proceedings under Australian Consumer Law and Fair Trading Act 2012 (Vic) – Whether reasonable apprehension of bias on part of Tribunal member – Whether Tribunal hearing was fair – Tribunal’s jurisdiction to determine ‘consumer and trader dispute’ – Whether Tribunal applied provisions of Australian Consumer Law in determining dispute – Adequacy of Tribunal’s reasons – Australian Consumer Law and Fair Trading Act 2012 (Vic), ss 182, 184 – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 117, 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondents	Mr M Lapirow	Davies Moloney

HER HONOUR:

Mark Weber met Ewan Carkeek in April 2016, during a horse riding event near Corryong, at a time when Mr Weber was looking to move to the high country. Mr Carkeek was looking for someone to work on a farming property that he owns with his wife, Lorraine Carkeek, at Berringama in the Upper Murray region. Mr Weber and Mr Carkeek agreed that Mr Weber would live in a house on the property in exchange for doing work on the farm, and they negotiated the details of the arrangement. Shortly afterwards, Mr Weber moved to the property.

While Mr Weber was living and working at Berringama, he made several loans to Mr Carkeek. The first loan was in May 2016 for $50,000. In June and July 2017, Mr Weber lent a further $50,000 to Mr Carkeek.

On 28 June 2017, over dinner at the Carkeeks’ house, Mr Weber discussed with them his business plan for a beef cattle enterprise. Following that discussion, Mr Weber purchased some cattle, which he agisted on the Carkeeks’ property. He also provided some business advice to Mr Carkeek.

Unfortunately, the relationship between Mr Weber and Mr and Mrs Carkeek soured. Mr Weber stopped working on the property in December 2017, although he remained living there until October 2018, and also kept his cattle agisted on the property. In January 2018, he asked for repayment of the loans, and claimed to be owed $36,150 for management fees. During May 2018, Mr Weber became concerned about the condition of the cattle and claimed that Mr Carkeek had deliberately starved them by keeping them in the same paddock for over three months. There was ongoing conflict about the agistment of Mr Weber’s cattle, until he sold the last of them on 1 October 2018.

In May 2018, Mr Weber made an application to the Victorian Civil and Administrative Tribunal, seeking orders against Mr and…

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 Weber v Carkeek

Details

AGLC: Weber v Carkeek [2020] VSC 366
Case: [2020] VSC 366
Decision Date: 22 June 2020

CaseChat Overview and Summary

The appeal in Weber v Carkeek involved a dispute between the appellant, Weber, and the respondent, Carkeek, and was determined by the Supreme Court of Victoria. Weber sought to challenge the orders of the Victorian Civil and Administrative Tribunal (VCAT) in proceedings that arose under the Australian Consumer Law and Fair Trading Act 2012 (Vic). The primary issues before the court were whether there was a reasonable apprehension of bias on the part of a VCAT member, whether the hearing was fair, the jurisdiction of the Tribunal to determine a 'consumer and trader dispute', and whether the Tribunal applied the provisions of the Australian Consumer Law in resolving the dispute. Additionally, the adequacy of the Tribunal's reasons for its decision was examined.

The court examined whether the appellant had a reasonable apprehension of bias against a member of VCAT. It considered the circumstances surrounding the appointment of the member and whether there were any factors that would lead a reasonable observer to suspect bias. Furthermore, the court assessed the fairness of the hearing process and the procedures followed by VCAT. It considered whether the appellant had an adequate opportunity to present their case and respond to the respondent's arguments. The court also examined the jurisdictional boundaries of VCAT in handling consumer and trader disputes and whether VCAT correctly applied the relevant provisions of the Australian Consumer Law. Finally, the court evaluated the adequacy of the reasons provided by VCAT for its decision.

In its decision, the court concluded that there was no reasonable apprehension of bias on the part of the VCAT member. It found that the process followed by VCAT was fair and that the Tribunal had jurisdiction to determine the dispute. The court also determined that VCAT had correctly applied the Australian Consumer Law in reaching its decision. However, the court found that the reasons provided by VCAT were inadequate as they did not sufficiently address all the issues raised in the proceedings. The court allowed the appeal and remitted the matter back to VCAT for further consideration.

The final orders of the court were that the appeal be allowed, and the matter be remitted to VCAT for rehearing and reconsideration in light of the court's findings. VCAT was directed to provide more comprehensive reasons for its decision, ensuring that all relevant issues and legal principles were adequately addressed. The parties were to bear their own costs of the appeal.

Orders