Wei v Yu

The matter of Wei v Yu involved an application for leave to appeal from a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The appellants, Wei and Yu, were self-represented litigants with limited English proficiency. The respondents had argued that the tribunal's decision was correct, and the appellants' application for leave to appeal should be dismissed. The dispute centred on whether the tribunal had breached the principles of procedural fairness by not providing adequate assistance to the appellants and by intervening in the presentation of evidence.

The central legal issue in this case was whether the tribunal member had provided the appellants with a fair opportunity to present their case, particularly in light of their limited English proficiency and self-representation. The appellants argued that the tribunal member had failed to warn them of the consequences of not calling a particular witness, thus breaching procedural fairness. They also contended that the tribunal member's refusal to allow them legal representation and their direction to sit at the back of the hearing room for a period of time created an apprehension of bias. The respondents maintained that the tribunal member had acted within their discretion and had not breached procedural fairness.

The court found that the tribunal member had indeed failed to provide the appellants with a fair warning of the consequences of not calling a specific witness, which amounted to a breach of procedural fairness. The court applied the rule in Jones v Dunkel, which requires special consideration for unrepresented parties with limited English proficiency. The tribunal member's refusal to allow legal representation and the direction to sit at the back of the hearing room did not amount to a breach of procedural fairness or create an apprehension of bias. However, the court found that the tribunal member had erred in law by not taking into account relevant considerations and by considering irrelevant factors in their decision-making process.

The court granted leave to appeal and allowed the appeal, finding that the tribunal had erred in law and breached procedural fairness. The orders of the tribunal were set aside, and the matter was remitted back to VCAT for reconsideration in light of the court's findings. The court emphasised the importance of ensuring procedural fairness, particularly for self-represented litigants with limited English proficiency, and the need for tribunal members to be mindful of their obligations in such circumstances.