Wei v Yu

[2019] VSC 102

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 01422

CHEN WEI	First Plaintiff
QI YUN XIA	Second Plaintiff
v
NA YU	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2019
DATE OF DECISION:	19 February 2019 (Revised)
CASE MAY BE CITED AS:	Wei v Yu
MEDIUM NEUTRAL CITATION:	[2019] VSC 102

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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Decision as to costs — Whether error of law —  Plaintiffs’ grounds challenge substantive decision of VCAT rather than costs order — Right of appeal against substantive decision already exhausted — No grounds established — Leave to appeal refused — Victorian Civil and Administrative Tribunal Act 1998 ss 109, 148.

PRACTICE AND PROCEDURE — Application by defendant for removal of plaintiffs’ affidavits from Court file — Whether affidavits contain ‘scandalous, irrelevant, or otherwise oppressive matter’ — Application granted — Supreme Court (General Civil Procedure) Rules 2015 r 27.07.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	The first plaintiff appeared in person and on behalf of the second plaintiff
For the Defendant	Mr J Selimi	Radebe & Associates

HIS HONOUR:

1. This is an application for leave to appeal brought by Mr Chen Wei and Ms Qi Yun Xia against an order of the Victorian Civil and Administrative Tribunal of 27 March 2018 that they pay the sum of $23,100 costs to the present defendant Ms Na Yu, which were costs of the VCAT proceeding.

1. The order followed an earlier decision on 29 September 2016 dismissing the present plaintiffs’ claim for the repayment of moneys alleged to be owing by Ms Na Yu.  An application for leave to appeal that decision was dismissed by Daly AsJ on 31 January 2018.[1]

   [1][2018] VSC 6.

1. The grounds of the present application for leave to appeal, leave being required under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, as contained in the draft amended proposed notice of appeal, largely attack the decision of VCAT of 29 September 2016 dismissing Mr Chen Wei and Ms Qi Yun Xia's proceeding.

1. They allege the provision of false information to and the telling of lies to VCAT and criticise the decision of the VCAT member. There is nothing in those proposed grounds that seeks to challenge VCAT’s order for costs made on 27 March 2018.

1. My reading of those proposed grounds has been reinforced by the submissions that Mr Chen Wei, acting on behalf of himself and the second plaintiff, has made to me and has previously stated in written submissions and affidavits filed in this proceeding. To put it simply, Mr Chen Wei wishes to again challenge the VCAT decision of 29 September 2016.

1. He cannot do that because he has already exercised his right of applying to challenge that decision in the Supreme Court. He was unsuccessful in that challenge and Daly AsJ dismissed the proceeding.

1. There is no challenge made in any of Mr Chen Wei’s documents or his oral submissions to the Tribunal’s exercise of discretion under s 109 of the VCAT Act in respect of costs. Rather he contends that no costs order should have been made because the earlier order of 29 September 2016 should not have been made.

1. Therefore, there are no proper questions of law or proposed grounds of appeal to justify the grant of leave to appeal against the costs order. The proceeding must be dismissed.

1. I am asked by the defendant to order under rule 27.07 of the Supreme Court (General Civil Procedure) Rules 2015 that the five affidavits made by the plaintiffs be removed from the court file because she says that under that rule, they contain ‘scandalous, irrelevant, or otherwise oppressive matter’.

1. Associate Justice Daly made such an order in respect of an affidavit that was before her Honour in the leave to appeal application dismissed on 31 January 2018.[2] I have considered the affidavits. They contain allegations of lying by the defendant before VCAT and criticisms of the VCAT member.

   [2]Ibid [123]-[131].

1. There has been no material put before me to establish those matters or justify the allegations. In any event, they were all to do with grounds relied on before Daly AsJ and as I have said, her Honour dismissed the application for leave to appeal. I therefore consider that it is appropriate that the five affidavits made by the plaintiffs or Mr Chen Wei, the first plaintiff, be removed from the court file and I so order.