Weber v Carkeek

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00390

MARK PAUL WEBER	Appellant
v
EWAN AUBREY CARKEEK, LORRAINE KATHLEEN CARKEEK and ALISON DOROTHEA CARKEEK	Respondents

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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 Mrs Carkeek under the Australian Consumer Law and Fair Trading Act 2012 (Vic). He sought payment of around $750,000 in respect of the loans that had not been repaid, for management consultancy services provided, and for breach of the agistment agreement. In July 2018, Mr Weber joined Mr Carkeek’s mother, Alison Carkeek, as the third respondent, on the basis that she had been in partnership with Mr and Mrs Carkeek until some time in 2017.

The Carkeeks disputed the claims made by Mr Weber and counterclaimed for rent and agistment fees. They also applied to the Tribunal for a possession order under the Residential Tenancies Act 1997 (Vic). In August 2018, the Tribunal made an order requiring Mr Weber to vacate the house on the property by 28 October 2018.

The proceedings brought under the Fair Trading Act were heard by the Tribunal, constituted by Senior Member Forde, over six days in October and November 2018. By that time, the amounts claimed by Mr Weber exceeded $2 million, including over $1.5 million for loss of future opportunity due to the termination of the agistment agreement. Mr Weber appeared for himself throughout the hearing, while the Carkeeks were represented by a solicitor.

On 7 December 2018, the Tribunal made the following orders:

1.The claims against the third respondent [Alison Carkeek] are dismissed.
2.Mark Weber must pay Ewan Carkeek and Lorraine Carkeek the sum of $84,014.35.
3.Ewan Carkeek and Lorraine Carkeek must pay Mark Weber the sum of $10,000.
4.Ewan Carkeek must pay Mark Weber the sum of $125,142.42.

The Tribunal’s orders were accompanied by written reasons.[1]

[1]Weber v Carkeek (Civil Claims) [2018] VCAT 1944 (Reasons).

In this proceeding, Mr Weber seeks leave to appeal against orders 1, 2 and 3 of the Tribunal’s orders, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). He seeks to have those orders set aside, and for the matter to be remitted to the Tribunal to be heard and determined again. If necessary, he also seeks an extension of time under s 148(5).

Mr Weber’s notice of appeal raised four questions of law, which can be summarised as follows:

(a) Was there a reasonable apprehension of bias on the part of the senior member, in circumstances where Mr Weber had made a complaint about her during the interlocutory stage of the Tribunal proceeding?

(b) Did the Tribunal fail to give Mr Weber a fair hearing, due to the manner in which the hearing was conducted?

(c) Did the Tribunal fail to apply the provisions of the Australian Consumer Law (ACL)[2] to the determination of Mr Weber’s claims?

(d) Were the Tribunal’s reasons adequate?

These questions of law were elaborated on in detailed grounds of appeal, to which I will refer below.

[2]Schedule 2 to the Competition and Consumer Act 2010 (Cth).

For the reasons that follow I have concluded that:

(a) The issues that led to Mr Weber’s complaint during the interlocutory stage of the Tribunal proceeding did not give rise to a reasonable apprehension of bias on the part of the senior member.

(b) The Tribunal gave Mr Weber a fair hearing.

(c) The Tribunal applied the provisions of the ACL to Mr Weber’s claims.

(d) The Tribunal’s reasons were adequate.

Mr Weber has not established any error in the Tribunal’s decision and orders. I will make orders granting a short extension of time and granting leave to appeal, and dismissing the appeal.

Tribunal’s reasons

The Tribunal’s reasons identified the basis of Mr Weber’s claim, as set out in his further amended points of claim,[3] to be damages for unconscionable conduct pursuant to s 21 of the ACL, negligence, and ‘engaging in conduct falling below the standards of behaviour established by law for the protection of the applicant against the reasonable risk of harm’.[4] The senior member observed that it was difficult to understand the legal basis for all of Mr Weber’s claims. However:[5]

Having presided over the hearing for six days, it was apparent that Weber’s claims arose from alleged breaches of four agreements and reimbursement of expenses. The conduct Weber claims is unconscionable is the conduct said to breach the agreements. Both parties’ oral submissions addressed the breach of agreement claims. Notwithstanding the change in focus of the case to address breach of agreement claims, the respondents did not seek an adjournment nor was an application to amend the FAPOC made.

[3]Further amended points of claim dated 13 September 2018, referred to in the reasons as ‘FAPOC’.

[4]Reasons, [2].

[5]Reasons, [3].

The Tribunal identified four agreements between Mr Weber and one or more of the respondents:[6]

i.Loan agreement – Weber lent a total of $100,000 to Carkeek and/or all respondents. The identity of the borrower is in dispute. Carkeek accepts that loans were made and not repaid;
ii.House/work agreement – agreement whereby one or all respondents agreed to Weber living in a house on the property in exchange for 20 hours of work per week and possibly some other terms;
iii.Agistment agreement – agreement for Weber to agist cattle on the property;
iv.Management consultancy agreement – agreement for Weber to provide consultancy services to one or all respondents.

[6]Reasons, [4].

The Tribunal then itemised the damages sought by Mr Weber in respect of breaches of these agreements, along with his claim for reimbursement of expenses totalling $3,380. It also noted the counterclaim by Mr and Mrs Carkeek for $156,000, for arrears of rent on the house and outstanding agistment fees.[7]
[7]Reasons, [5]–[7].

The issues for determination, in relation to each of the agreements, were identified by the Tribunal as:[8]
[8]Reasons, [10].

i.Who were the parties?
ii.Has the agreement been breached?
iii.If yes, what is the compensable loss and damage?

The Tribunal also identified as issues whether the claims for negligence and unconscionable conduct had been made out.[9]

[9]Reasons, [11].

Home/work agreement

The Tribunal determined that the home/work agreement was between Mr Weber and Ewan and Lorraine Carkeek, as the owners of the property.[10] Alison Carkeek was not a party because:[11]
[10]Reasons, [18].
[11]Reasons, [15]–[17].

(a) There was no evidence that she owned the house or the property while Mr Weber was in occupation.

(b) There was evidence, in the form of a letter from Mr Carkeek’s accountant, that she had retired from the partnership on 31 March 2017.

(c) There was no evidence that the partnership had anything to do with letting the house or running the property. At most there was limited evidence that some agistment agreements were made with the partnership. The Tribunal was not satisfied that the home/work agreement was with the partnership.

It was not really in dispute that Mr Weber was in breach of the agreement. He agreed that he owed $6,734 for rent up to 31 December 2017. He also admitted that he had done no work under the arrangement in 2018, and that he owed something for rent in 2018. The Tribunal determined that the value of house occupancy and horse agistment was $300 per week, which equated to $12,000 over 40 weeks occupancy in 2018.[12]
[12]Reasons, [19]–[21].

The Tribunal addressed an objection taken by Mr Weber to the claim made by Mr and Mrs Carkeek for payment of outstanding rent. He argued that they were not entitled to make that claim because, on 11 October 2018, the Tribunal had ordered them to file a counterclaim limited to the claim for agistment fees which formed the existing setoff in their defence. The Tribunal did not accept that submission for the following reasons:[13]
[13]Reasons, [23]–[29].

The counterclaim seeks $156,100 for expenses of rent and agistment as pleaded as a setoff against monies owed.
The Points of Defence dated 28 September 2018 do not raise a set off for agistment fees or rent.
All parties gave evidence about the rental arrangement for the house and what rent remained outstanding. Weber admits owing $6734 for rent to 31 December 2017 and to owing rent until he vacated in October 2018. He said the rent should be $200 or $300 per week.
Had Carkeek, Lorraine and Alison made set off in the defence there would be no issue. They did not. The hearing however proceeded on the basis that they were offsetting rent against any money owed to Weber. This was clear at the outset and confirmed by Weber’s admissions of his liability for rent
The Tribunal is not a Court and does not have procedural rules in the same detail as those that apply in the Courts. The rules of pleading do not apply.
There is no suggestion that Weber was taken by surprise in relation to Carkeek seeking to set off the rent due against the loan liabilities. The only ground for Weber objecting to the rent set off is based on the order made on 11 October 2018. The order limits the counterclaim. That does not prevent a later order allowing amendments to the counterclaim to raise other issues. The order does not however prevent the rent form from being raised as a set off during the hearing as part of the defence. Given Weber’s acknowledgement of liability for rent it should be considered by me in the interest of justice and a fair hearing. There is no prejudice to Weber by reason of the rent set off not being specifically pleaded in the defence. It was open to Weber to seek an adjournment in relation to the rent issue, which he did not do. He was genuine and forthcoming in his acceptance that he owed rent.
A similar approach was taken by me in accepting a change in focus in Weber’s case to address breach of agreement claims.

On that basis, the Tribunal determined that Mr Weber was liable to Mr and Mrs Carkeek under the house/work agreement in an amount of $18,734.

Loan agreement

The Tribunal found that the loans were personal to Mr Carkeek and were not loans to the partnership. This was because Mr Carkeek did not represent that he was seeking the loans on behalf of the partnership, and Mr Weber was not aware of the partnership, or Elaine Carkeek’s involvement in it, until after he had lent the money. Using the funds for partnership debts did not make them a loan to the partnership.[14]
[14]Reasons, [38].

It was agreed that Mr Carkeek owed Mr Weber $100,000 and ‘interest’ on the loans. The agreed ‘interest’ was the amount that would put Mr Weber in the position he would have been in, had he not withdrawn the money from his superannuation fund.[15]
[15]Reasons, [31], [37].

The Tribunal accepted Mr Weber’s evidence that he had lost ‘interest’ of $23,572.42, based on fluctuations in unit prices in his VicSuper Future Saver account to 16 May 2018.[16]
[16]Reasons, [39].

Mr Weber claimed an additional amount for loss on the sale of some cattle in January 2018. He argued that he was forced to sell the cattle because he needed money and Mr Carkeek had not repaid the loans. The cattle were underweight, and Mr Weber claimed to have lost $12,960 on the sale. The Tribunal rejected this claim as too remote. It found that early sale of cattle was not a loss that was reasonably foreseeable or arising naturally from the non-repayment of the loans.[17]
[17]Reasons, [42]–[45].

There was a further claim for $136,000 for lost opportunity, which related to a loan of $20,000 in May 2016. Mr Weber claimed that he gave this amount to Mr Carkeek in order to purchase cows for Mr Weber when there were buying opportunities. This had not occurred, and Mr Weber claimed the estimated sale price of the calves he expected that the cows would have produced. Mr Carkeek disputed that he had accepted the money on the basis that he would use it to buy cows for Mr Weber. The Tribunal did not accept Mr Weber’s claim, preferring Mr Carkeek’s evidence on this point. Additionally, if there had been a breach of some agreement, Mr Weber had failed to mitigate his loss by purchasing cattle directly.[18]
[18]Reasons, [46].

Management consultancy agreement

The Tribunal found that there was an agreement between Mr Weber and Mr and Mrs Carkeek for Mr Weber to assist them with their financial arrangements.[19] However, the Tribunal did not accept that there was any agreement that the Carkeeks would pay Mr Weber $175 per hour for his work.[20]
[19]Reasons, [51].
[20]Reasons, [52]–[54].

In the absence of an agreement about his remuneration, Mr Weber was entitled to recover ‘reasonable value’ for his work.[21] The Tribunal accepted that Mr Weber assisted Mr Carkeek with a successful refinancing arrangement, and that he started work on a further business plan to secure more funds.[22] It did not accept that it was reasonable for Mr Weber to claim payment for 360 hours of work. Having regard to the rate of $100 per hour set out in Mr Weber’s email to Mr Carkeek of 22 January 2018, the Tribunal assessed the value of Mr Weber’s consultancy work to the Carkeeks at $10,000.[23]
[21]Reasons, [55].
[22]Reasons, [59].
[23]Reasons, [56]–[59].

Agistment agreement

The Tribunal concluded that there was an agistment agreement between Mr Weber and Mrs and Mrs Carkeek. It found that Alison Carkeek was not a party to the agistment agreement, because she was not an owner of the land on which the cattle were agisted and she resigned from the partnership before the agreement commenced.[24]
[24]Reasons, [67].

It was not contested, and the Tribunal accepted, that Mr Weber owed agistment fees totalling $65,280.35 for the period August 2017 to 1 October 2018.[25]
[25]Reasons, [66].

As to whether the agistment agreement had been breached, the Tribunal found that the Carkeeks owed the following obligations to Mr Weber:[26]
[26]Reasons, [69].

(a) Providing land suitable for herd numbers and pastures to suit herd numbers;

(b) Moving herds between pastures to ensure sufficient pasture provided for herd type and numbers;

(c) Inspecting the cattle regularly; and

(d) Reporting in due course to the owner any injuries, deaths, or other matters concerning the health of the herd.

However, the Carkeeks did not have any obligation to provide animal husbandry to Mr Weber’s cattle. The Tribunal found that, in the absence of specific agreement, this is a matter for the owner of the cattle. There was no evidence of any such agreement or instruction by Mr Weber.[27]
[27]Reasons, [70].

The Tribunal did not accept that the agistment agreement was for a fixed term of five years.[28]
[28]Reasons, [82].

The first issue for determination was whether the Carkeeks had breached the agistment agreement in May 2018 by not providing sufficient pasture.[29] The Tribunal’s findings were:
[29]Reasons, [71].

(a) Some of the cattle were lean but they were not starving.[30]
[30]Reasons, [74], [76], [79].

(b) The cattle from Cameron’s Corner were not suited to the area, and had less condition than other cattle.[31]
[31]Reasons, [75].

(c) Mr Weber was responsible for inspecting his cattle and determining when to wean his calves. This was a husbandry matter for which Mr Weber was responsible, as the owner of the cattle.[32]

(d) Mr Weber was able to inspect his cattle for all but four days in May 2018, when Mr Carkeek prevented his access. Mr Weber lived on the property, and had the use of a quad bike to move around the property.[33]

(e) Mr and Mrs Carkeek were not in breach of the agistment agreement.[34]

[32]Reasons, [74], [77].

[33]Reasons, [78].

[34]Reasons, [79].

Although the evidence did not establish any breach of the agistment agreement, the Tribunal went on to consider two particular claims made by Mr Weber:

(a) In relation to his claim for $32,000 loss of profit due to weaning 39 calves and selling them on 16 May 2018 in poor condition, there was no evidence that Mr and Mrs Carkeek caused this loss. There was no reason why the calves could not have remained on the property, moved to new pasture and been fattened before sale.[35]

(b) As to the claim for $90,000 damages for nine cattle that died, the Tribunal accepted evidence that cattle die on agistment for many reasons. There was no evidence that any of Mr Weber’s cattle died because of something Mr and Mrs Carkeek did or did not do. While Mr Carkeek did not notify Mr Weber of the deaths in a timely manner, that did not entitle Mr Weber to compensation.[36]

[35]Reasons, [80].

[36]Reasons, [81].

The next issue was whether Mr Carkeek had repudiated the agistment agreement. The Tribunal found that he did not. There was no evidence that the agistment agreement was dependent upon the continuation of the house arrangement, and so Mr Carkeek’s conduct in evicting Mr Weber from the house did not repudiate the agistment agreement. Mr Carkeek did not resile from his obligations under the agistment agreement; rather, he attempted to fulfil them.[37]
[37]Reasons, [83]–[86].

The third issue for determination was whether Mr Carkeek had breached the agistment agreement in such a manner as to entitle Mr Weber to terminate it. Mr Carkeek’s failure to report the deaths of cattle to Mr Weber in a timely manner was a breach of the agreement, but was not a breach of an essential term or condition. The Tribunal did not consider the breach to be significant or to suggest a repudiation of the agistment agreement by Mr Carkeek.[38]
[38]Reasons, [87]–[88].

No other breach of the agistment agreement was established. The Tribunal was not satisfied that failure to move the cattle between 11 April and mid May 2018 was a breach of the agistment agreement amounting to repudiation.[39]
[39]Reasons, [89].

Mr Weber’s claim for $1,518,380 for lost opportunity because of the termination of the agistment agreement therefore failed. Further, even if the Tribunal had been satisfied that the agistment agreement was for a fixed term of five years, and that the Carkeeks had repudiated it, Mr Weber did not have to sell his cattle when he did. He failed to mitigate his loss by finding alternative agistment.[40]
[40]Reasons, [90]–[91].

Reimbursement of expenses

Mr Weber claimed reimbursement for the following expenses:

(a) $990 for a land valuation fee paid by Mr Weber, which Mr Carkeek accepted was owed by him;

(b) $1,810 for spare parts for a truck purchased from Mr Carkeek, bought by Mr Weber in order to make the truck roadworthy;

(c) $250 for a road worthy certificate for the truck; and

(d) $330 for a payment to a truck driver on behalf of Mr Carkeek.

The Tribunal accepted that Mr Weber was entitled to reimbursement of $250 from Mr Carkeek for the roadworthy certificate and $330 for the payment made to the truck driver, in addition to the $990 land valuation fee. Neither Mrs Carkeek or Alison Carkeek were liable to repay these amounts.[41]
[41]Reasons, [94]–[95], [101]–[102].

As to the claim for repayment for the purchase of spare truck parts, the Tribunal accepted Mr Carkeek’s evidence that he sold the truck ‘as is’ and that there was no evidence that roadworthiness was discussed. The claim in respect of the truck parts therefore failed.[42]
[42]Reasons, [97]–[100].

Unconscionable conduct claim

The Tribunal noted Mr Weber’s claim that the three respondents had engaged in unconscionable conduct, in breach of s 21 of the ACL, based on the following alleged conduct:[43]
[43]Reasons, [103].

i.Breaching the agistment agreement and deliberately starving his cattle;
ii.Denying him access to the property and saying he was going to be charged with trespass;
iii.Blackmailing him by saying he could not move his cattle until he paid outstanding agistment fees;
iv.Failing to tell him that the first loan would not be paid back in two months and that Carkeek was heavily in debt and could not pay back the loans;
v.Evicting him from the house;
vi.Failing to tell him Carkeek would not pay him for management services but would receive the benefit of the services;
vii.Telling him in June 2016, that Carkeek had approvals for refinancing and would be able to pay back the loans together with interest when he did not;
viii.Promising him on or about 18 July 2017, when Carkeek asked him for a further $5000, to pay it ‘next week’ and then not pay[ing] it;
ix.Promising him on 9 January 2018, that Carkeek would be transferring $10,000 to him the next day and not transferring the money.

After referring to ss 21 and 22 of the ACL, the Tribunal held:[44]
[44]Reasons, [107]–[108], [111]–[115].

There is no suggestion in this case that Weber was at a special disadvantage in dealing with Carkeek because of illness, ignorance, inexperience, impaired faculties or other circumstances affecting his ability to conserve his own interests and that Carkeek unconsciously took advantage of the opportunity.
I find that Weber was aware of Carkeek’s general level of indebtedness. Weber knew that Carkeek had significant debt on the property and had to refinance in the order of $3.6 million. Even if Weber was not aware, there was no evidence presented that Weber would have done anything differently. The alleged nondisclosure by Carkeek of his level of indebtedness does not amount to unconscionable conduct.
…
I do not accept that unkept promises to repay money as set out in paragraph 98 amount to unconscionable conduct. They were simply promises that were not kept and at best are a breach of the various loan agreements.
I have determined earlier in these reasons that the conduct complained of in paragraph 98(i) and (ii) did not occur.
There was no evidence of blackmail and accordingly I find that the conduct referred to in paragraph 98(iii) above did not occur.
Having found that there was no five-year agreement for Weber to occupy the house, evicting him (the conduct complained of in paragraph 98(v) above) is not unconscionable conduct.
There is no evidence that Carkeek said he would not pay for management services (the conduct complained of in paragraph 98(vi) above and as such there can be no unconscionable conduct in this regard.

Negligence claim

The remaining issue for the Tribunal was Mr Weber’s claim for damages in negligence,[45] which were claimed ‘for the harm brought upon the applicant’s cattle, notwithstanding the psychological harm brought upon the applicant including but not limited to damages in negligence for conduct deliberately, knowingly and calculated by the respondents and the respondent’s agents to cause unreasonable risk of harm to the applicant’. The Tribunal noted that this claim was not particularised, in relation to duty of care, breach of duty, or injury:[46]

In the circumstances, given my finding that there was no unconscionable conduct and given the lack of particulars in relation to the claim for negligence, the claim fails. The arrangement between the parties that might give rise to a duty of care on the facts of this case is the agistment arrangement. Alison was not a party to that arrangement. I have found for the reasons stated above, that there was no breach of the agistment agreement. I also found that there was no breach of the house/work agreement. Accordingly, Weber has not satisfied me that he is entitled to any damages for negligence by any respondent.
[45]Reasons, [116]–[119].
[46]Reasons, [119].

Summary of Tribunal’s findings

The Tribunal’s reasons concluded with a summary of the outcome of its findings, as follows:[47]
[47]Reasons, [120]–[122].

Weber owes Carkeek and Lorraine $84,014.35 being
i.$18,734 under the house/work agreement; and
ii.$65,280.35 under the agistment agreement.

Carkeek and Lorraine owe Weber $10,000 under the consultancy agreement.
Carkeek owes Weber $125,142.42 being
i.$123,572.42 under the loan agreement; and
ii.$1,570 for reimbursement of expenses.

Was there a reasonable apprehension of bias?

The first question of law identified in Mr Weber’s notice of appeal was:

Whether the Tribunal erred in law and in all the circumstances allowed a Judicial officer to preside over these proceedings, where there was an existence of perceived or apprehended bias namely:
a.Did the Tribunal err in law by appointing a presiding member to hear this case, where previously the applicant had made formal complaints against the member during the interlocutory period
b.Did the Tribunal member err in law, by not excusing herself from presiding over this case, where previously the applicant had made formal complaints against the member during the interlocutory period.

The factual basis for this complaint was set out in Mr Weber’s affidavit in support of his application for leave to appeal, as follows.

On 4 July 2018, Deputy President Lulham ordered Mr Weber to file amended points of claim by 20 July 2018. The order stipulated that this document should set out ‘clearly what claim is being made against which person, each amount that is claimed, how each amount is calculated or arrived at, details of loss or damage and the relief or remedy sought. The document should be set out as a narrative, in a chronological and logical sequence, in separate numbered paragraphs’. The order also stated that, if Mr Weber named Alison Dorothea Carkeek as the third respondent, ‘the filing of the document will cause her to be joined as a party’.

Mr Weber filed amended points of claim, by attaching them to an email sent at 4.56 pm on 20 July 2018 to the Tribunal’s registry at [email protected]. He received a confirmation email from [email protected], advising that his email would be forwarded to the appropriate area at VCAT.

On 27 July 2018, Senior Member Forde made a further order requiring Mr Weber to file amended points of claim, and extended the time for doing so to 10 August 2018. The order noted the following findings:

1.The applicant failed to comply with order 2 of Deputy President Lulham’s orders of 4 July 2018 in that he did not file an Amended Points of Claim by 20 July 2018.
2.The applicant sent an Amended Points of Claim to the Tribunal on 25 July 2018. In that claim he purported to join Alison [Dorothea] Carkeek as a party but disclosed no clear cause of action against her. Furthermore the document refers to the respondents in plural on many occasions where it is unclear which of the respondents is being referred to.
3.The Tribunal is not assisted by the Amended Points of Claim emailed on 25 July 2018 as the claims in it are unclear and ambiguous. Given the damages sought are in excess of $2,000,000 the document in its current form is rejected by the Tribunal.

On 30 July 2018, Mr Weber sent an email to the Registrar seeking to have the orders made on 27 July 2018 corrected. He submitted:

1.In respect of order 1, the member has erred in her findings. The applicant filed the amended points of claim [on] 20 July 2018 (4.56PM) and the VCAT sent a confirmation email to that effect [on] 20 July 2018 (4.56PM) see attached copies of emails.
2.In order 2 the member has made comment about the Joinder of Alison [Dorothea] Carkeek and that the Amended Points of Claim do not disclose a cause of action against her. Orders of Deputy President I. Lulham at order 2, do not require any more than including her on the Amended Points of Claim for her to be joined in these proceedings.
The order of Deputy President I. Lulham were made on the premise of discussions had in the hearing before him. If the orders required anything more beyond those made, then that requirement would have been included.
3.In respect of order 3, in the findings the member has rejected outright the Amended Points of Claim by the applicant. The applicant submits that on the whole, the applicant followed those orders of order 2 by Deputy President I. Lulham. No further guidance was given in respect of following a specific practice note in regard to how a Points of Claim should be made out.
Whilst the amended points of claim may require a small amount of tweaking, fundamentally the applicant has followed the requirements as set out in the orders made 4 July 2018 before Deputy President I. Lulham. Again, if those orders required anything further, then that would have been made.

A further order was made by Senior Member Forde on 9 August 2018. It recorded the following by way of background:

The Tribunal’s registry has referred the Applicant’s email dated 6:50 pm on 30 July 2018 to me.
The Tribunal records the filing and service of the Amended Points of Claim by the Applicant on 25 July 2018.
The Tribunal has no record of receiving an email from the Applicant at 4:56pm on 20 July 2018.
The Order made 4 July 2018 required the Applicant to serve Amended Points of Claim on the other parties by 20 July 2018. The Applicant’s email of 31 July 2018 was not copied in to the other parties.

The order went on to direct the Principal Registrar to send a copy of Mr Weber’s email of 30 July 2018 to the respondents, and the parties to comply with the relevant practice note about communications with the Tribunal. Mr Weber was directed to comply with Senior Member Forde’s order of 27 July 2018.

Mr Weber wrote again to the Principal Registrar of the Tribunal, by email on 15 August 2018. He referred to the orders made on 9 August 2018 by Senior Member Forde, and continued:

In respect of these orders, the applicant wishes to make a formal complaint about the procedural process.
The basis of the complaint is that Senior Member Forde has not applied due diligence in respect of obtaining important facts and applying these facts about the applicants case, that the member based the orders on. In the alternative, the VCAT processes are incomplete or are not recording emails accurately within the VCAT system that has caused the errors of the Senior Member.

The email set out in detail what emails Mr Weber had sent to VCAT and when, and pointing out that his email of 30 July 2018 had been copied to Ewan Carkeek, Lorraine Carkeek, and their solicitor. It continued:

1.Respectfully the Member has erred in her findings, and contained in the orders is an implied assertion that the applicant has failed to follow procedure. This is taken up in Order 2 of said orders. The applicant has at all material times followed procedures to the best of his knowledge
2.Because the Member has erred in these orders, [the Member] has therefore denied the applicant natural justice. The Tribunal is bound by the rules of natural justice
3.Because the Member has erred in these orders, and failed to correct a wrong in her previous order, these orders are allowing a wrong to be worked
4.Because the Member has erred in both her orders, the applicant is concerned of apprehended bias and this may prejudice these proceedings
5.The applicant is foreshadowing the making of a S78 application against the respondents, and as the Member has erred in these orders and failed to correct previous orders, the applicant is concerned this will prejudice this application

The Tribunal’s registry referred this email to Senior Member Forde. On 23 August 2018, she made a further order which noted and responded to the concerns raised by Mr Weber in his email:

Concern 1
1.The first concern relates to an email sent by the applicant to the Tribunal on 20 July 2018.
2.On 27 July 2018, I made orders in chambers. Those orders included a finding being Finding 1, that the applicant had not filed an Amended Points of Claim by 20 July 2018 in accordance with orders of Deputy President I Lulham of 4 July 2018.
3.Finding 1 was repeated as a background fact in orders I made on 9 August 2018.
4.At the time of making the orders in chambers, the Tribunal file did not contain a printout of an email from the applicant to the Tribunal on 20 July 2018 at 4.56PM. The Tribunal file contained an email of 25 July 2018 at 1.09 PM from the applicant, copied to the other parties referring to the Amended Points of Claim.
5.The email dated 20 July 2018 has now been filed on the Tribunal file. The Tribunal notes that it was sent by the Applicant to the Tribunal on 20 July 2018.
6.In the circumstances, findings 1 and 2 of the orders of 27 July 2018 and some of [the] background information in the orders of 9 August 2018 were not correct. The applicant did send an email to the Tribunal on 20 July 2018 at 4.56 PM filing his Amended Points of Claim.

Concern 2
7.The applicant has raised a concern about the statement in the 9 August 2018 orders in the background section that “The Applicant’s email of 31 July 2018 was not copied in to the other parties.” The order contains an error. The line should have read at the start of the sentence “The Applicant’s email of 20 July 2018 which was attached to” so that the full sentence read “The Applicant’s email of 20 July 2018 which was attached to the Applicant’s email of 30 July 2018 was not copied into the other parties”.
8.The email of 20 July 2018 does not, on its face, show that it was copied to the other parties. By email form the applicant of 30 July 2018 at 6.50 PM which was copied to all the parties, the applicant attached his email of 20 July 2018 at 4.56PM. The reference in the order of 9 August 2018 to PNVCAT1 is a reminder that the parties are to copy each other into any correspondence with the Tribunal. There was no negative consequence following from the email of 20 July 2018 being sent to VCAT only.

Concern 3
9.The Applicant is concerned that the matters raised in concerns 1 and 2 above, have lead to a denial of natural justice. He is also concerned that he will be prejudiced, and bias has been shown. These orders should address those concern[s] by correcting earlier statements in the orders.
10.Whether the applicant filed his Amended Points of Claim on 20 July 2018 or on 25 July 2018 was not relevant to the orders made on either the 27 July 2018 or 9 August 2018. The Tribunal accepts that the Amended Points of Claim were filed on 20 July 2018. The Tribunal did not reject the Amended Points of Claim because of the date they were filed or because on 20 July 2018 they were not copied to the other parties. The document was rejected because, as stated in the orders of 27 July 2018, the claims contained in the Amend[ed] Points of Claim document were ambiguous and unclear.

The order addressed a further concern, about the listing of the proceeding for compulsory conference together with the related residential tenancies proceeding. The senior member confirmed that Mr Weber was expected to comply with her orders of 27 July 2018.

Mr Weber filed further amended points of claim on 13 September 2018, the document referred to by the Tribunal in its reasons for decision.

On 8 October 2018, Mr Weber applied for an injunction, ordering the respondents to allow him to remove his cattle from the property. The application was heard by Senior Member Forde on 11 October 2018. At that hearing, Mr Weber said words to the effect ‘Senior Member, as you know I previously made a formal complaint against you. I hope this will not be a problem’. The senior member responded, ‘It won’t be’.

The hearing of the proceeding, and the Carkeek’s counterclaim, was listed before Senior Member Forde commencing 29 October 2018. The hearing commenced that day and continued for a total of six days. Mr Weber raised no concern during that hearing about the two proceedings being heard by the senior member.

Mr Weber submitted that these circumstances gave rise to a reasonable apprehension that the senior member was biased, such that she should not have been appointed to hear the proceedings and should have excused herself from hearing them. He argued that the senior member erred in allowing herself to hear the case and in failing to excuse herself from the hearing, which ‘resulted in her reasons and orders containing major factual and legal errors which prejudiced the outcome against the applicant’.[48]
[48]Notice of Appeal dated 4 January 2019, [9].

The respondents submitted that there was no substance to the complaint of apprehended bias, and no reason to believe that the senior member would decide the case other than on its legal and factual merits. They also relied on Mr Weber’s failure to object to the senior member hearing the proceedings at any time during the final hearing as a waiver of his right to object subsequently. They argued that, in light of his earlier involvement in proceedings against Deakin University,[49] he was aware of the law in relation to apprehended bias.
[49]Weber v Deakin University [2016] VSC 147, Weber v Deakin University [2016] VSC 640, and Weber v Deakin University [2018] VSCA 53.

During the hearing before me, I asked Mr Weber why he did not raise his concerns with the senior member at the start of the hearing. His answer was that he was not a legal professional and was not aware of when to apply. It was only once he got the decision, which he thought was grossly wrong, that he started investigating and realised what bias was.

Consideration

A judicial officer is disqualified from hearing a proceeding if ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[50] This standard applies to members of the Tribunal, who exercise judicial power and are bound by the rules of natural justice.[51]
[50]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[51]Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), s 98(1)(a).

The test for apprehended bias is a robust one, which attributes to the fair-minded lay observer knowledge of the relevant circumstances and surrounding context.[52] The fair-minded lay observer is taken to understand that judicial officers must make decisions in accordance with law, and have a duty to act with integrity and impartiality.[53] That person is taken to know the relevant facts, and to be aware of the tribunal member’s obligation to ‘do equal justice to all persons, and to discharge the duties of office according to law’, to the best of his knowledge and ability, ‘without fear, favour or affection’.[54]
[52]Isbester v Knox City Council (2015) 255 CLR 135, [23] (Kiefel, Bell, Keane and Nettle JJ).
[53]Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87–88 (Mason CJ and Brennan J); Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68, [12]; Ronan v ANZ Banking Group Ltd (2000) 2 VR 531, [43] (Ormiston and Batt JJA).
[54]As a member of the Tribunal promises to do when taking the oath or affirmation of office: Victorian Civil and Administrative Tribunal (Oath and Affirmation of Office) Regulations 2013 (Vic), reg 5 and Schedule.

I do not consider that the complaint made by Mr Weber, and the surrounding circumstances, could have created a reasonable apprehension in the mind of an informed, fair-minded lay observer that Senior Member Forde might not bring an impartial mind to hearing the case. To the contrary, the senior member’s response to the complaint demonstrated impartiality — she recognised his concerns and addressed them in her order of 23 August 2018, acknowledging two errors on her part. Her response focused on managing the proceeding so that it could be determined on its merits, based on clear and unambiguous points of claim. In this case, the fair-minded lay observer can be taken to understand that judicial officers are not easily offended or angered by a litigant respectfully pointing out an error and insisting that it be addressed.

Further, the senior member’s response on 11 October 2018 when Mr Weber asked whether his complaint would be a problem, indicated that she regarded the matter as closed and was not troubled by it. If this query was intended to be a suggestion that the member should disqualify herself, she was right not to do so.[55]
[55]It is an abdication of judicial function for a judicial officer to automatically step aside whenever requested by a party to do so: Alfarsi v R [2020] VSCA 119, [9].

It is therefore not necessary to deal with the respondents’ alternative contention that Mr Weber waived his entitlement to complain about apprehended bias, having failed to raise any concern about the senior member’s impartiality during the six day hearing.

Did the Tribunal give Mr Weber a fair hearing?

Mr Weber raised a number of complaints about the fairness of the Tribunal hearing in his case, as follows:

(a) He contended that the Tribunal member had failed to correctly and properly apply the evidence in her reasons, which led to ‘adverse and deficient’ findings.

(b) He said that it was unfair to receive a document prepared by the respondents, with calculations of agistment fees claimed to be owing, during oral submissions and after the evidence had concluded.

(c) He complained that the Tribunal member had directed him not to ask certain questions in cross-examination of Mr Carkeek, which resulted in adverse findings and orders.

(d) He alleged that the Tribunal member was not competent to hear the case, because she did not know the relevant provisions of the ACL under which he brought his claim.

(e) He complained that the Tribunal member unfairly directed him not to press issues regarding the conduct of the respondents and their agents, which were relevant to his claim of unconscionable conduct.

(f) He said that the Tribunal wrongly ordered him to pay damages in respect of rent owing under the house/work agreement, when this had been dispensed with in the Tribunal’s residential tenancies jurisdiction and was not at issue in the proceedings heard by the senior member.

I address each of these complaints in turn. I will deal with Mr Weber’s further contention that the Tribunal failed to consider and determine the credibility of witnesses when considering the adequacy of the Tribunal’s reasons.

Findings of fact based on evidence

In his notice of appeal, Mr Weber alleged that the Tribunal had erred in law by reason of the fact that the Tribunal member, having had evidence adduced in the Tribunal books or orally, ‘then contradicted and or failed to correctly and properly apply the evidence in the member’s reasons’, which lead to ‘adverse and deficient findings’.[56] This complaint was not elaborated upon in Mr Weber’s grounds of appeal, his written submissions, or in his oral submissions on the appeal.
[56]Notice of Appeal dated 4 January 2019, Question of Law 2.a.

It is an error of law to make a finding of fact that is not supported by any probative evidence.[57] However, the no evidence ground is ‘narrowly available’,[58] and a complaint that the Tribunal gave insufficient weight to some evidence, and not enough weight to other evidence, does not raise a question of law.[59] The Tribunal has the function of determining the facts, and in doing so it is a matter for the Tribunal how much weight to give particular evidence, and how to resolve conflicts in the evidence.[60]
[57]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89–90.
[58]Myers v Medical Practitioners Board (2007) 18 VR 48, [37], [46].
[59]Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, [21]–[24] (Osborn JA, Beach JA agreeing).
[60]Karakatsanis, [28] (Osborn JA, Beach JA agreeing).

In this case, the Tribunal did not accept Mr Weber’s evidence in all respects. Some of its findings of fact were contrary to his evidence and his submissions. While he may be aggrieved by those findings, no question of law arises in relation to them unless they were not open on the evidence before Tribunal — that is, there was no probative evidence that supported the findings. Mr Weber did not establish that in relation to any finding of the Tribunal.

Receipt of agistment fee calculations during closing submissions

The final day of the hearing was occupied with the closing submissions of the parties. Mr Stevenson, the Carkeeks’ solicitor, went first, and began by handing up a document that he described as a summary of invoices provided to the Tribunal the previous day. Mr Weber submitted that it was not fair for the Tribunal to receive this document, which he described as a ‘two page document of calculations of agistment owing’. He argued that the document was inadmissible and should not have been taken into account by the Tribunal as it ‘was not rigorously tested in evidence’.

The document was exhibited to Mr Weber’s affidavit filed with his notice of appeal. It is a table headed ‘AGISTMENT’ and lists amounts claimed for agistment between August 2017 and October 2018 totalling $65,280.35. In the course of his submissions, Mr Stevenson told the Tribunal that the document was based solely on the invoices that Mr Carkeek provided. He acknowledged that there had been some errors in those invoices, because some cattle had died, and said that charges for those cattle had been taken out. It is apparent that the Tribunal accepted the calculation of agistment fees in this document, because it found that Mr Weber owed Mr and Mrs Carkeek $65,280.35 under the agistment agreement.

Having reviewed the transcript of the Tribunal hearing, I do not consider there was anything unfair about the Tribunal receiving or relying on the agistment fee calculations. It appears from the transcript that the calculations were based on evidence that was already before the Tribunal, and that the calculations were provided by way of a submission to the Tribunal.

The hearing was conducted using a Tribunal book that included invoices sent by Mr Carkeek to Mr Weber, for amounts including agistment fees. The Tribunal book was not included in the material filed by Mr Weber in support of his appeal, and his submissions on appeal did not include a comparison of the calculations against the invoices and other evidence about agistment fees.

What appears from the Tribunal transcript is that Mr Carkeek was taken to the invoices during his evidence in chief and explained how they were calculated.[61] He also gave a figure for the total agistment fees owing, and there was discussion of how that figure was calculated.[62] Mr Weber later cross-examined Mr Carkeek about the invoices.[63] Mr Stevenson provided the calculations to the Tribunal, with an explanation that they were based on the invoices, and later made submissions about them.[64] In his own closing address, Mr Weber also made submissions about the invoices and the Carkeeks’ calculations.[65] On the material before me, it appears that Mr Weber had a fair opportunity to test the evidence on which the calculations were based, and to make submissions about whether the calculations should be accepted by the Tribunal.
[61]Tribunal transcript, 1 November 2018, 35.
[62]Tribunal transcript, 1 November 2018, 35–39.
[63]Tribunal transcript, 14 November 2018, 11, 86–87, 88–89.
[64]Tribunal transcript, 15 November 2018, 2, 24–25.
[65]Tribunal transcript, 15 November 2018, 41–42.

Directions during cross-examination

Mr Weber submitted that the Tribunal wrongly directed and instructed him during his cross-examination of the respondents not to focus on the examination of documents in the Tribunal book, but to ask more general questions of the respondents. He said that this approach redirected his focus from the evidence he was attempting to elicit, with the result that he was criticised by the Tribunal for not producing that evidence.

Mr Weber did not direct my attention to specific parts of the transcript that demonstrated that the Tribunal member had unfairly intervened in his cross-examination of Mr and Mrs Carkeek or their witnesses. However, he did provide me with a document that set out all of the transcript references on which he relied. I have read that document carefully, and I have also reviewed the transcript of the Tribunal hearing for myself. Having done that, I do not consider that the senior member intervened unfairly in Mr Weber’s cross-examination, or redirected him away from asking questions that were relevant to the issues she had to decide.

There were occasions when the senior member asked Mr Weber how a question was relevant, redirected him to relevant matters, and asked him to move on when his questioning was irrelevant or had become repetitive. She did the same when Mr Stevenson was cross-examining Mr Weber. It is entirely appropriate for a Tribunal member to guide cross-examination in that way, particularly where — as was the case here — the cross-examiner is not a lawyer or an experienced advocate.

An example illustrates the approach taken by the Tribunal in this case. It took place on the fifth day of the hearing, during Mr Weber’s cross-examination of Mr Carkeek, after Mr Weber had already taken Mr Carkeek to a number of emails in the Tribunal book:[66]

Mr Weber: So, I will ask senior member to turn to document 684, July 19th 2018, at 8.39pm. Mr Cutler confirms, the second to last paragraph, after you complete the wean we will move all your cattle providing you email me to confirm this is okay, otherwise we will wait for the big hat approval.
Senior Member: Do you have a question? This is not … I’m mindful that we’re not really achieving much just going through all of these emails. So, at the moment, you’re cross-examining, so if you want to ask a question about the email you ask a question, but you’ve given your evidence already, so this is not your chance to keep going over evidence that you’ve already given. This is your opportunity just to ask questions. So, if you take this witness to an email you must ask him a question about the email otherwise I don’t want you to go to the email.
Mr Weber: Certainly. So, on the 19th July 2018, we had arranged for me to wean my cows using your facilities, that’s correct, isn’t it?
Mr Carkeek: Yes.

[66]Tribunal transcript, 14 November 2018, 33.

This intervention redirected Mr Weber away from reading a document that was already in evidence, to asking a relevant question, to which he got an answer. There was nothing unfair about it.

Knowledge of ACL provisions

Mr Weber next contended that the Tribunal member was not competent to hear his case, as she did not know the relevant provisions of the law under which he had brought his claim. As I explain below, it was Mr Weber and not the senior member who misunderstood the Tribunal’s jurisdiction under the Fair Trading Act and its interaction with the ACL.[67]
[67]See [110]–[122] below.

The specific complaint that the senior member did not know the relevant provisions of the ACL appears to be based on several exchanges that took place during Mr Weber’s final submissions, as follows:[68]
[68]Tribunal transcript, 15 November 2018, 57.

Senior Member: If you’re suing someone, you have to establish the causes of action that you’re actually suing them for. So, I’m just trying to understand. I understand very well your contract claims that you’ve got. And I know there’s a lot of things referred to in the points of claim, so that ... Now, you’ve just mentioned unconscionable conduct.
Mr Weber: Under Section 21 of Australian Consumer Law.
Senior Member: Right.
Mr Weber: ... Under Section 21 of the Australia Consumer Law it points out what considerations the court will take into consideration for a unconscionable conduct, and ...
Senior Member: So what ...? You need to give me submissions on what conduct of Mr Carkeek or Mrs Carkeek is said to be unconscionable.

Mr Weber said he would do that, and continued making submissions about other matters. After some time, he returned to the ACL:[69]
[69]Tribunal transcript, 15 November 2018, 63.

Mr Weber: … Under the Australian Consumer Law, if they engaged in practices that were misleading and deceptive, the law states that, A, a person must not in trade or commerce, engage in conduct that is misleading or deceptive or is likely to lead ...
Senior Member: So, I know the law, but what is the conduct that’s misleading and deceptive? So, this is separate to negligence. Negligence is a common law cause of action. So, misleading and deceptive conduct is something that’s different. So, you’re dealing with the ACL misleading and deceptive conduct. What is the conduct that you’re relying upon?
Mr Weber: The conduct was that the obligations, when Mr Carkeek took the money from me, he did not identify the perceived risks that that would cause me. And those risks he didn’t convey to me to make an informative decision about whether I was lending the money.
Senior Member: Right. So, you’re saying he didn’t [disclose] the perceived risks. Now, why did he have an obligation to do that?
Mr Weber: Because under the ACL it states that a trader must provide risks that are foreseeable to a supplier.
Senior Member: It doesn’t. So, you need to show me the section that says that, because I’ve never heard of that section.

At that point, Mr Weber sought and was granted a short adjournment. When the senior member returned to the bench, she said that she had brought her legislation with her. The discussion resumed:[70]
[70]Tribunal transcript, 15 November 2018, 64.

Senior Member: So, you’re basically saying that there's a provision which says the supplier has to identify perceived risks.
Mr Weber: Yes.
Senior Member: Yes, and I say that I’ve never seen such a provision.
Mr Weber: So, firstly, I’ll go through unconscionable conduct. A person must not in trade ...
Senior Member: So, what are you, in the ACL and Fair Trading Act or the Australian Consumer Law?
Mr Weber: Australian Consumer Law.
Senior Member: Right. So, what section am I looking at?
Mr Weber: Section 21.

Mr Weber then read out s 21 of the ACL, and explained what conduct he relied on to establish unconscionable conduct by the Carkeeks, including the various breaches of contract by Mr Carkeek. When he came to the loan agreement, he drew attention to s 22(1)(i) of the ACL, and read it out. A short time later he said:[71]

Mr Weber: So, in that regard, the loan is a ... I provided a service, lending money is a service. And under that circumstance, Mr Carkeek didn’t [unclear] when he borrowed the money from me that he couldn’t pay it back within the two months. And the second amount of money ... And that he didn’t disclose to me ...
Senior Member: So, what you're saying is under Section 22(1)(i), Mr Carkeek had an obligation to tell you that he couldn’t pay the loan back in two months?
Mr Weber: That’s correct.
Senior Member: All right.

[71]Tribunal transcript, 15 November 2018, 68.

It appears that the provision that Mr Weber was referring to early in the exchange was s 22(1)(i) of the ACL. He submitted that the effect of that section was that Mr Carkeek was obliged to disclose to him the risks of lending him money, such as the level of his indebtedness and his inability to pay back the loan quickly. Section 22(1)(i) does not have that effect.

Section 22(1) of the ACL lists a number of matters to which a court may have regard for the purpose of determining whether a supplier of goods or services has contravened s 21, one of which is:

(i) the extent to which the supplier unreasonably failed to disclose to the customer:
(i) any intended conduct of the supplier that might affect the interests of the customer; and
(ii) any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer);

Section 22(2)(i) makes similar provision, in relation to an acquirer of goods or services. Neither provision obliges a borrower to disclose to a lender the ‘perceived risks’ of a loan transaction. An unreasonable failure to disclose risks is simply one matter that may be taken into account in determining whether the transaction involved unconscionable conduct.

I could find nothing in the transcript relied on by Mr Weber, which included the exchanges set out above, that indicated that the senior member did not understand the applicable law. To the contrary, her explanations to Mr Weber were correct.

I do not consider it significant that, after a break requested by Mr Weber, the senior member brought the relevant legislation with her into the hearing room. Having the legislation to refer to assisted her to understand Mr Weber’s submission that there was an obligation to disclose risks, and to identify the provision of the ACL on which he relied. It was not, as Mr Weber suggested, an indication that the senior member did not know the law.

Conduct relevant to unconscionable conduct claim

Mr Weber then complained that the Tribunal had directed him not to press issues concerning the conduct of the respondents and their agents, which he contended were critical elements of his claim of unconscionable conduct. He said that he had attempted to adduce evidence about this conduct, but that the Tribunal member had limited interest in hearing it. He argued that the Tribunal was wrong in not allowing this evidence, and in failing to make findings about this conduct of the respondents and their agents.

Mr Weber’s further amended points of claim based his claim of unconscionable conduct on the following alleged conduct of the respondents:[72]
[72]Further amended points of claim dated 13 September 2018, [61].

(a) Mr Carkeek borrowed money from him without disclosing all foreseeable risks, or that he had no intention of fulfilling his promises to pay back the loans as agreed;

(b) Mr Carkeek acquired and received the benefit of his management services, but failed to disclose all foreseeable risks, or that he had no intention of fulfilling his promises to pay for the services;

(c) Mr and Mrs Carkeek repudiated or fundamentally breached the agistment agreement, by engaging in conduct that caused Mr Weber’s cattle to suffer, become emaciated and die, causing him significant financial losses;

(d) Mr and Mrs Carkeek engaged in unlawful conduct that amounted to entrapment so that they could have Mr Weber charged with trespass.

Mr Weber also made generalised allegations of bad faith on the part of the respondents, including their failure to negotiate a resolution of the dispute with him.

I understood from Mr Weber’s oral submissions before me that he was particularly aggrieved that the Tribunal member had not allowed him to introduce evidence about the effect of the outstanding loans on his ability to care for his cattle. He submitted:

What the member also fails to acknowledge, and would not allow me to produce in the hearing, was the fact that the conduct of Mr Carkeek – I had lent him money, and that was all my money, and that when the cattle needed feeding I didn’t have the money that was required because Mr Carkeek had promised to pay back the money that I’d lent him, but which he failed to do, and it was up to Mr Carkeek to feed my cattle under the agistment agreement and keep them in good condition.

The refusal to receive evidence about this meant, Mr Weber argued, that he was not able to get to the core of his complaint of unconscionable conduct.

Again, Mr Weber relied on his document setting out relevant transcript extracts, without directing my attention to particular instances where the senior member had disallowed evidence that supported his unconscionable conduct claim. I have carefully considered those transcript extracts, and have reviewed the whole transcript of the Tribunal hearing for myself. Having done that, I do not consider that the senior member unfairly prevented Mr Weber from presenting evidence or asking questions on this issue.

In relation to the allegation that Mr Carkeek borrowed money from Mr Weber with no intention of paying it back as promised, Mr Weber cross-examined Mr Carkeek at some length about his promise to repay the June 2017 loan within a short time. He established that Mr Carkeek had said that he would repay the loan when he received funds from another loan that had been approved, when the other loan had not in fact been approved.[73] Mr Weber put to Mr Carkeek that he had obtained the June 2017 loan under false pretences, which he denied. The following exchange then took place:[74]
[73]Tribunal transcript, 1 November 2018, 53–56.
[74]Tribunal transcript, 1 November 2018, 57–58.

Mr Weber: You put into evidence, Mr Carkeek, that you had a loan approved subject to this caveat, and that’s what you told me, and you obtained that money, the $30,000 to pay off that caveat where the loan wasn’t approved. I say you were being deceptive to me.
Senior Member: Right, well, there’s no fraud allegation in this case so that it’s … I think the facts just speak for themselves, so that you’ve had Mr Carkeek say that he thought that he had a loan secured subject to the caveat. That he had a whole load of applications going at the time.
That when you’re questioning now whether he knew that the loan had been approved, well, no, it obviously couldn’t have been approved if it hadn’t have … If there was a caveat there it wouldn’t have gone through. But I’m just … I don’t like the nature of the questioning. It’s starting to go too far.
Mr Weber: Okay. All I’m getting at is the money that I lent him was on the premise … that [he] was to release that, to get all my money back, and Mr Carkeek lied to me about what the purpose of it was for. So if I rephrase that, I’m saying that he lied to me about what the purpose of it was for.
Senior Member: Well, I’m not sure what the lie is. That he wanted to get the caveat off.
Mr Weber: The lie is that he told me that the loan was approved, that’s the lie. And so on the basis that he told me that the loan was approved subject to the caveat, I lent him the money on the premise that he would be paying all the money back that he owed me.
…
Senior Member: So really, Mr Weber, the issue is, if we ask the question, did you lend on the basis that the loan was approved and you’d get all your money back shortly, and that’s the only reason you gave the extra money, your position is yes.
Mr Weber: That’s correct, yes. Absolutely.
Senior Member: I don’t know that you’re necessarily at odds with each other, shall I say? … [My] understanding is that Mr Carkeek actually, listening to everything he said, probably thought that the same thing would happen.
Mr Weber: That may have been the case but the fact is …
Senior Member: It didn’t happen.
Mr Weber: It didn’t happen.
Senior Member: So of course you’re saying you expected the money to come back quickly and it didn’t, and then it left you cash-strapped later in the near future, I think in January, causing you to have to sell some cattle.
Mr Weber. Yes. …

It is clear from this exchange that the senior member understood Mr Weber’s argument, and did not prevent him from asking questions relevant to it. She intervened only to ensure that the questioning remained relevant to the claims made in his points of claim.

I could not identify that Mr Weber had been prevented or diverted away from presenting evidence and asking questions about the basis on which he provided management services for the Carkeeks. The Tribunal was not satisfied that there was an agreement to pay Mr Weber $175 per hour for his services, as he had claimed.[75] However, it did accept that Mr Weber had done work for the benefit of Mr and Mrs Carkeek, for which he should be paid a reasonable amount.
[75]See [26] above.

There was extensive evidence about the alleged breaches of the agistment agreement. The Tribunal member allowed Mr Weber to put his case and to question the respondents’ witnesses about this aspect of the dispute between them. Ultimately, however, the Tribunal was not satisfied that Mr and Mrs Carkeek breached the agistment agreement as alleged by Mr Weber.[76]
[76]See [30]–[33] above.

It is clear from the transcript quoted above, and from other exchanges during the hearing,[77] that the Tribunal member understood that Mr Carkeek’s failure to repay the loans by January 2018 had left Mr Weber short of funds to spend on his cattle. She also understood that there had been a great deal of unpleasantness after the relationship broke down in early 2018. One example is an email in which the Carkeeks’ agent, Mr Cutler, threatened to have Mr Weber charged with trespass. This email was in evidence, and the Tribunal member observed that it and other emails sent by Mr Cutler were inflammatory.[78]
[77]For example, Tribunal transcript, 14 November 2018, 92–93.
[78]Tribunal transcript, 30 October 2018, 25–27; 15 November 2018, 21.

On a number of occasions during the hearing, the Tribunal member encouraged Mr Weber to focus on whether this unpleasantness had any legal consequences. For example:[79]

Senior Member: … [W]hat some might perceive as unsportsmanlike conduct or uncommercial conduct, that doesn’t mean that there’s a legal ramification for it.
Mr Weber: Having said that we’re bringing this under the Australian Consumer Law, and there’s considerations about the conduct of the parties after the breach of the contract. [And] that’s what I’m actually aiming at …
Senior Member: Yes, but what is the … It’s only relevant if it’s the conduct that has caused you loss, which might be the breach of contract. So, the fact that it mightn’t be nice behaviour is neither here nor there from a legal point of view. So that you’re not being cut out from saying things but it really is, it all goes back to what ought to have happened and what happened. So if there’s conduct that fell short then we’re looking at that conduct, but conduct of writing a nasty letter or having to get an injunction to let you in, while that might all be unfortunate at the end of the day it won’t change who’s right and who’s wrong from a legal perspective.

[79]Tribunal transcript, 14 November 2018, 83.

The senior member’s attempts to direct Mr Weber’s attention to conduct that might have legal consequences were legally correct and consistent with her obligation to act fairly and according to the substantial merits of the case.[80] They were also consistent with her duty to give him, as a self-represented layperson, a reasonable opportunity to present his case.[81]
[80]VCAT Act, s 97.
[81]Roberts v Harkness (2018) 57 VR 334, [48]–[49], [53]–[56].

Mr Weber’s dissatisfaction with the Tribunal’s hearing and determination of his claim of unconscionable conduct appears to me to stem from an imperfect understanding of the legal concept of unconscionability. Unconscionability is something more than unfairness, or misrepresentation, or breach of an agreement, or nasty and hurtful behaviour. As explained recently in Australian Securities and Investment Commission v Kobelt:[82]

‘Unconscionable’ is an obscure English word which centuries of use by courts administering equity have transformed into a legal term of art. In Australia, the central concern of a court administering equity in identifying conduct as unconscionable has long been understood to be to relieve against a stronger party to a transaction exploiting some special disadvantage which has operated to impair the ability of a weaker party to form a judgment as to his or her interests.

Unconscionable conduct has ‘variously been described as requiring victimisation, unconscientious conduct or exploitation’.[83]

[82](2019) 368 ALR 1 (Kobelt), [81] (Gageler J) (citations omitted).

[83]Kobelt, [15] (Kiefel CJ and Bell J).

The Tribunal dismissed Mr Weber’s claim primarily because it did not accept most of the factual allegations on which the claim was based.[84] There was a more fundamental difficulty with the unconscionability claim, which was that Mr Weber did not establish that he was in a position of special disadvantage in relation to Mr and Mrs Carkeek.[85]
[84]See [43] above.
[85]Reasons, [107].

Claim for unpaid rent

Mr Weber claimed that the Tribunal had erred in law by ordering him to pay an amount for rent owing under the house/work agreement, because Mr and Mrs Carkeek had not made a claim for unpaid rent in separate proceedings brought against him in the Tribunal’s Residential Tenancies Division. As I understood it, the submission was that there was an issue estoppel that precluded the Carkeeks from subsequently raising the issue in the proceedings brought under the Fair Trading Act. There was also an argument that it was unfair for the Tribunal to make an order for payment of unpaid rent, when the claim was not made in the proceedings before it.

An issue estoppel exists between parties to a proceeding where a question of fact or law has been finally determined by a court in an earlier proceeding between the same parties.[86] Current authority suggests that a final decision of the Tribunal in the exercise of its original jurisdiction can give rise to an issue estoppel.[87]
[86]Kuligowski v Metrobus (2004) 220 CLR 363, [21]–[22].
[87]Morris v Riverwild Management Pty Ltd (2011) 38 VR 103, [84] (Weinberg JA).

I gather that, in mid 2018, Mr and Mrs Carkeek made an application to the Tribunal under the Residential Tenancies Act for a possession order in respect of the house on their farm in which Mr Weber was living. The application was not included in the material provided by Mr Weber to the Court nor, it appears, was it before the Tribunal. I was not told which provision of the Residential Tenancies Act the application was made under,[88] or whether it included a request for determination of unpaid rent. The final order made in that proceeding was not before me, although it appears to have been made by consent.[89] Mr Weber vacated the house in late October 2018. I am not satisfied that any question of unpaid rent was raised or determined in the Residential Tenancies Act proceeding. The issue estoppel submission made by Mr Weber was therefore not made out.
[88]Such as whether it was made under s 322 or s 335, or some other provision.
[89]Following a compulsory conference in the Fair Trading Act proceeding on 30 August 2018, Member Buchanan made orders that noted that ‘final orders have been made today by consent, in the proceeding brought by the first and second respondents in the Residential Tenancies List of the Tribunal’.

As to whether it was fair for the Tribunal to determine the question of unpaid rent in the Fair Trading Act proceedings, there was a counterclaim for unpaid rent before it. On 15 October 2018, Mr Carkeek filed an application by EA & LK Carkeek under the Fair Trading Act, claiming $156,100 from Mr Weber for rent and agistment. The application stated that ‘these matters were pleaded to be set off against monies claimed by [the] respondent but if they exceed this they are [to] be claimed against [the] respondent.’

The Tribunal member hesitated about whether to determine the claim for unpaid rent. This was in part because the Carkeeks’ points of defence dated 18 September 2018 had not raised a setoff for rent. It was also because the Tribunal had, in an order made on 11 October 2018, given the Carkeeks leave to file a counterclaim limited to the claim for agistment fees that was raised as a setoff in the points of defence. It is not clear on what basis the Tribunal limited the subject matter of the counterclaim, or why it did so, although it is likely that it was concerned that all issues between the parties could be dealt with fairly at the impending hearing, listed to start on 29 October 2018.

For the reasons set out at [19] above, the Tribunal member was satisfied that she could fairly determine the claim for unpaid rent. I have reviewed the relevant parts of the transcript and can see no error in that conclusion. Mr Weber freely agreed that he owed rent up to 28 October 2018, and that the claim had not been determined in the Residential Tenancies Act proceeding.[90] It was established on the first day of the hearing that the Tribunal would determine the Carkeeks’ claim for unpaid rent in the Fair Trading Act proceedings.
[90]Tribunal transcript, 29 October 2018, 99–102.

Conclusion – The Tribunal gave Mr Weber a fair hearing

None of the natural justice grounds have been made out. Mr Weber has not shown that the hearing was unfair to him in any respect. On the contrary, I am positively satisfied that he was given a more than reasonable opportunity to put his case, and to respond to the counterclaim made by Mr and Mrs Carkeek.

Did the Tribunal misapply the Australian Consumer Law?

The third question of law identified in Mr Weber’s notice of appeal was:

Whether the Tribunal erred in law and misdirected itself, in the alternative detoured on a frolic of its own, by failing to hear this case and apply the relevant statutory law (Australian Consumer Law), appropriate tests and provisions applicable to that law, from which the applicant had brought his complaint to the Tribunal, and that he relied on and made out in the originating application.

The propositions put by Mr Weber in support of this question of law were as follows:

(a) The claim was brought in the Tribunal under the ACL.

(b) He expected that the Tribunal would hear the claim under the ACL.

(c) The Tribunal is a creature of statute, and does not have jurisdiction to hear matters involving common law and equity. It was only empowered to hear Mr Weber’s claim as an ACL claim.

(d) It was therefore an error of law for the Tribunal to treat the claim as a contractual dispute, rather than (or as well as) a claim of unconscionable conduct contrary to s 21 of the ACL. The Tribunal member was wrong to state that the same set of facts can give rise to a number of different causes of action. It was also erroneous for the Tribunal to have a ‘two way bet’ and decide the case as both a contract claim and an ACL claim.

This contention was based on a misunderstanding of the Tribunal’s jurisdiction under the Fair Trading Act. The interaction between the Fair Trading Act and the ACL is not straightforward, and Mr Weber can be forgiven for having difficulty with it.

The Fair Trading Act[91] is a Victorian statute. Chapter 7 of the Fair Trading Act confers jurisdiction on the Tribunal in respect of a ‘consumer and trader dispute’, as defined in s 182 of the Fair Trading Act:
[91]As noted at [5] above, the full title of the Fair Trading Act is the Australian Consumer Law and Fair Trading Act 2012 (Vic).

What is a consumer and trader dispute?
(1)In this Chapter a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.
(2)For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury.
(3)For the purposes of subsection (1), a dispute or claim includes a claim related to personal injury if—
(a)the claim is for an amount not exceeding $10 000; and
(b)the claim relates to a supply or possible supply of goods or services; and
(c)the supply or possible supply of goods or services is the subject of a related consumer and trader dispute.

Separately, Pt 2.2 of the Fair Trading Act applies the ACL as a law of Victoria. The ACL is Schedule 2 to the Competition and Consumer Act 2010 (Cth), a Commonwealth statute. Chapter 2 of the ACL provides general protections against misleading and deceptive conduct, unconscionable conduct, and unfair contract terms.

Section 184 of the Fair Trading Act provides:

Settlement of consumer and trader disputes or small claims
(1)VCAT may hear and determine a consumer and trader dispute.
(2)VCAT may do one or more of the following in relation to a consumer and trader dispute –
(a)refer a dispute to a mediator appointed by VCAT;
(b)order the payment of a sum of money –
(i)found to be owing by one party to another party;
(ii)by way of damages (including exemplary damages and damages in the nature of interest);
(iii)by way of restitution;

(c)vary any term of a contract;
(d)declare that a term of a contract is, or is not, void;
(e)order the refund of any money paid under a contract or under a void contract;

(f)make an order in the nature of an order for specific performance of a contract;
(g)order rescission of a contract;
(h)order rectification of a contract;
(i)declare that a debt is, or is not, owing;
(j)make an order for the possession of land;
(k)order a party to do or refrain from doing something.
Example
If the supplier has default listed the purchaser with a credit reference agency in relation to a perceived debt owing, VCAT, in addition to declaring that there is no debt owing, may order the supplier to contact the credit reference agency and have the default listing removed from the purchaser’s credit record.

(3)The power to make an order under subsection (2)(j) may only be exercised by a judicial member of VCAT.
(4)In awarding damages in the nature of interest, VCAT may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.

Section 185 gives the Tribunal additional powers in relation to a ‘consumer dispute’ and a ‘trader-trader dispute’.[92] Pursuant to s 185(1), the Tribunal may, in determining one of those disputes, ‘make any order it considers fair’. It is now clear that this power must be exercised according to law, and not by reference to general notions of fairness and justice.[93]
[92]As defined in s 185(4).
[93]Christ Church Grammar School v Bosnich (2010) 34 VAR 23, [40]; cf Law v MCI Technologies Pty Ltd [2006] VCAT 415, [39]–[41].

The Tribunal’s jurisdiction to hear and determine consumer and trader disputes, consumer disputes and trader-trader disputes (together, consumer law disputes) is concurrent with the jurisdiction of Victorian courts in commercial and consumer matters. While the Tribunal is in many respects the preferred forum in Victoria for adjudicating consumer law disputes, in particular small claims,[94] its jurisdiction is not exclusive.
[94]Fair Trading Act, s 187. See also ss 188 and 189, which provide for proceedings commenced in a court to be stayed or dismissed where the Tribunal is a more appropriate forum for a consumer and trader dispute.

The grounds on which the Tribunal may make an order in relation to a consumer law dispute include, but are not confined to, breach of a provision of the ACL. They extend to common law and equity. This is not because the Tribunal has common law or equitable jurisdiction. It is because Parliament has given the Tribunal broad jurisdiction and powers in relation to consumer law disputes, which are to be exercised in accordance with the same legal principles that courts must apply.

As Cavanough J explained in Tucci v Victorian Civil and Administrative Tribunal:[95]

It is true that VCAT, being a creature of statute and not being an ordinary court (much less a superior court), does not have a general equitable jurisdiction. However it is open to Parliament to clothe VCAT, to such extent as Parliament sees fit, with the power, or indeed the duty, to recognise and apply equitable doctrines, defences and remedies or to proceed in accordance with, or by analogy with, equitable principles. Parliament might do this expressly or by implication.

Having regard to the range of remedies that the Tribunal could order under the precursor to s 184 of the Fair Trading Act,[96] and also its power to grant an injunction under s 123 of the VCAT Act, his Honour concluded that, although it is not a court, the Tribunal is required to apply the principles of equity, including equitable defences, in determining a consumer and trader dispute.[97]

[95][2010] VSC 425 (Tucci), [41] (citations omitted).

[96]Section 108 of the now repealed Fair Trading Act 1999 (Vic).

[97]Tucci, [42]–[45].

The same reasoning applies to an order for the payment of money found to be owing, or an award of damages, under s 184(2)(b) of the Fair Trading Act. The Tribunal must apply the law, including, where relevant, the common law of contract, in determining whether to make such an order in relation to a consumer law dispute.

The way in which the Tribunal applied the law in this case was correct. The senior member was right when she told Mr Weber that the same set of facts can give rise to a number of different causes of action. There was no error in determining the dispute by applying both contract law and s 21 of the ACL. That was the basis on which Mr Weber’s claim was made to the Tribunal and presented during the hearing.

Mr Weber’s application was made under the Fair Trading Act, not the ACL. The claim that he outlined in his application of 16 May 2018, under the heading ‘Why do you want these orders?’, made a number of claims including breach of contract. The alleged breaches were:

The Applicant provided a loan to the respondents including Consultancy Management services which has not been paid for $218,247,93 Details of which the respondents have details.
The respondent provided a long term agistment service for the applicants cattle. As a consequence of a fundamental breach of the contract (not reporting to the applicant stock health and condition and failing to provide adequate feed – starving them) the applicant has suffered a significant loss $199,408.00
As a consequence of the respondents not repaying the loan to the applicant, the applicant has suffered a loss of back-payment from his super pension. The respondents had agreed to compensate for the total loss but have failed to do so $91,260.00 Also for loss of future super pension payments $241,839.00.

The original application did not make any allegation of unconscionable conduct. This allegation was, however, made in points of claim filed by Mr Weber, the last version of which was his further amended points of claim dated 13 September 2018. The document was clearly not drawn by a lawyer, but it conveyed the substance of Mr Weber’s claim in considerable detail. It set out the alleged terms of the loan agreements, the management consultancy agreement, and the agistment agreement, the ways in which Mr Weber alleged that the agreements had been breached, the amounts said to be owing by the respondents, and the claimed losses. It did not explicitly claim damages for breach of contract, although the claim was implicit in the document. It also included an allegation that the respondents had engaged in unconscionable conduct.

Having reviewed the transcript of the entire hearing, I see nothing wrong with the Tribunal’s assessment that Mr Weber’s ‘claims arose from alleged breaches of four agreements and reimbursement of expenses’.[98] That was a reasonable way to approach his complex and sometimes confused claim.
[98]Reasons, [3]. See [13] above.

No error is established in relation to the third question of law.

Were the Tribunal’s reasons adequate?

The fourth and final question of law identified in Mr Weber’s notice of appeal was whether the Tribunal’s reasons gave complete expression as to the reasoning process it employed to move from its consideration of the evidence to its conclusion. His particular complaints were that the Tribunal had:

(a) failed to identify and include relevant statutory provisions and binding legal authorities in its reasons;

(b) not stated the legal principles relevant to determining the proper basis for liability of a partner in a partnership agreement, before dismissing all claims against Alison Carkeek, the third respondent;

(c) contradicted orders made on 11 October 2018 by allowing the respondents to counterclaim for unpaid rent, a claim not made in their points of defence; and

(d) failed to make findings about the credit of witnesses.

Section 117 of the VCAT Act provides that the Tribunal must give reasons for any order it makes in a proceeding, other than an interim order. Written reasons must include the Tribunal’s findings on material questions of fact.[99] The Tribunal meets its obligation under s 117 by giving reasons that:[100]

… identify the issues in dispute; deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material on which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion.

[99]VCAT Act, s 117(5).

[100]Dimatos v Coombe [2011] VSC 619, [20]. See also Burgess v McGarvie [2013] VSCA 142, [65].

It is an error of law if the Tribunal does not meet its obligation under s 117 to give reasons for a final order.[101] If the Tribunal’s explanation for its order does not include its findings on material questions of fact, or does not reveal its path of reasoning, the Tribunal has not met its obligation under s 117. These things are required in order that the parties and, in the event of an appeal, this Court, can understand the basis on which the Tribunal has reached its decision.[102]
[101]State of Victoria v Turner (2009) 23 VR 110, [240]–[241]; Secretary to the Department of Justice v YEE [2012] VSC 447, [90]; Ferris v State of Victoria [2018] VSCA 240, [10]. See also The Hon Justice Kyrou, ‘Adequacy of Reasons’ (Conference Paper, Council of Australasian Tribunals Conference, 30 April 2010).
[102]Secretary to the Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96, [23].

In my view, the Tribunal’s reasons for decision met the standard required by s 117 of the VCAT Act. They were admirably clear, concise, and well structured, given the length of the hearing and the number of issues for determination. The reasons set out the Tribunal’s findings on material questions of fact by reference to relevant evidence. I had no difficulty understanding the basis on which the Tribunal reached its decisions. I could follow the senior member’s path of reasoning in relation to each of the claims made by Mr Weber and the counterclaims made by Mr and Mrs Carkeek.

As to the particular complaints made by Mr Weber:

(a) The Tribunal did identify and include relevant statutory provisions and authorities, without engaging in legal discussion or explanation that was not essential to the decision. Section 21(1) of the ACL was set out, and s 22 was referred to.[103] The reasons referred to and applied relevant authority in relation to remoteness of damage and repudiation of a contract.[104] There was no need to refer to any more legislation or authority, when the main issues for determination were who were the parties to the agreements, what were their terms, and whether they had been breached.
[103]Reasons, [105]–[106], [109].
[104]Reasons, [43]–[44], [84]–[85], [87].

(b) There was no evidence that Mr Weber had any dealings at all with Alison Carkeek. The Tribunal found that:

(i) the house/work agreement was made with Mr and Mrs Carkeek, as the owners of the property;

(ii) the loans were made to Mr Carkeek personally, and not to the partnership;

(iii) the management consultancy agreement was with Mr and Mrs Carkeek;

(iv) the agistment agreement was made with Mr and Mrs Carkeek, after Alison Carkeek had resigned from the partnership.

(c) In view of these findings of fact, all of which were open on the evidence, there was no need for the Tribunal to refer in its reasons to any legal principles concerning partnership.

(d) In relation to the respondents’ counterclaim for unpaid rent, the Tribunal’s reasons explained clearly why the Tribunal had decided to determine that claim.[105] As discussed, I do not consider the Tribunal erred in determining it.[106]

(e) It was not necessary for the Tribunal to make general findings about the credit of witnesses. The reasons had to set out the material findings of fact, with an intelligible explanation of how those findings were based on the evidence. On questions where there was a conflict between the evidence of Mr Weber and the respondents’ witnesses, the Tribunal’s reasons gave an explanation of how the conflict had been resolved. For example, the senior member was not satisfied that Mr Weber had sent an email on 29 June 2017, confirming the management consultancy agreement discussed the previous evening. She explained at [53.ix] of the reasons why she preferred Mr Carkeek’s evidence to Mr Weber’s on this point. Similarly, the senior member’s findings that the Carkeeks did not repudiate the agistment agreement were clearly explained with, where necessary, an explanation of why Mr Weber’s evidence was not accepted.[107]

[105]Reasons, [23]–[29].

[106]See [101]–[106] above.

[107]Reasons, [70]–[83].

The Tribunal’s reasons were adequate, and met the standard required by s 117 of the VCAT Act.

Disposition

Mr Weber sought a short extension of time within which to apply for leave to appeal. The Tribunal’s orders were made on 7 December 2018, and were emailed to Mr Weber that day. His notice of appeal was filed on 7 January 2019, three days after the expiry of the 28 day time limit in s 148(2) of the VCAT Act. In view of the fact that Mr Weber is self-represented and lives in a remote part of Victoria, and that the Court’s summer vacation fell during the appeal period,[108] I am satisfied that there is an explanation for the delay. The respondents did not identify any prejudice due to the delay and did not oppose time being extended. I am satisfied that it is appropriate to extend the time for filing the notice of appeal to 7 January 2019, and will make an order to that effect.
[108]In calculating time fixed under the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the period from 24 December to 9 January next following is excluded: see r 3.04(1). It is doubtful whether this rule modifies the 28 day time limit in s 148(2) of the VCAT Act: Metricon Homes Pty Ltd v Hooper [2014] VSC 12, [13]–[15].

Mr Weber’s notice of appeal raised some substantial points and his prospects of success on appeal were not fanciful.[109] I would accordingly grant leave to appeal.
[109]Note Printing Australia Ltd v Leckenby (2015) 50 VR 44, [82] (Tate JA, Whelan and Ferguson JJA agreeing).

However, Mr Weber has not established that the Tribunal’s orders were affected by error, and the appeal must be dismissed.

In relation to costs, the usual position is that a successful party is entitled to an order for costs, unless there are circumstances that justify a departure from the general rule.[110] In this case, my inclination is to order Mr Weber to pay the respondents’ costs on a standard basis, unless I am persuaded that a different order is appropriate. I will make orders allowing any party who seeks a different order as to costs to file brief written submissions in support of the order sought.
[110]Northern Territory v Sangare (2019) 265 CLR 164, [24]–[25].

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22 June 2020