Weldemichael v Ha

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0020

KIFLE WELDEMICHAEL	Applicant
v
DUY TRI HA (ABN 997 269 818 95) T/AS COLLINGWOOD MOTOR BODY REPAIRS	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	22 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 230
JUDGMENT APPEALED FROM:	[2022] VSC 817 (Ginnane J)

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CONSUMER LAW – Application for leave to appeal – Contract for repairs to car – Assessment of damages – Whether VCAT decision involved any question of law – VCAT’s findings of fact – Applicant seeking leave to appeal from VCAT decision – Applicant seeking leave to appeal from judge’s order refusing leave to appeal from VCAT decision – Application not reasonably arguable – Application totally without merit – Application for leave to appeal refused.

Supreme Court Act 1986, ss 14C and 14D, Victorian Civil and Administrative Tribunal Act 1998, s 148.

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Counsel
Applicant:	Unrepresented
Respondent:	No appearance
Solicitors
Applicant:
Respondent:

BEACH JA:

This proceeding concerns the repair of a motor car (a 1991 Nissan Pintara) of limited value.[1] In November 2017, the applicant took his car for repair to the respondent’s workshop. The quoted cost of the work to be performed was $270. The applicant claims he paid this amount for the respondent to replace the car’s exhaust pipe, which had become noisy. The respondent claims that $130 of the sum was to weld and repair a muffler and $140 was for ‘engine services’.
[1]In a document that formed part of the respondent’s response to the applicant’s claims (and which appears to have been pp 89 and 90 of the court book in the court below) the respondent asserted that the applicant had ‘repeatedly and freely admitted that he knows the monetary value of his car is between $200-$500’.
The applicant was dissatisfied with the work performed by the respondent. In August 2018, he commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’). In his application form, in answer to the question, ‘How much is your claim?’, the figure ‘$270’ was typed. At some stage, that figure was crossed out and the figure ‘$520’ was handwritten on the form.
The applicant’s claim was heard at VCAT by a deputy president on 3 January 2019. During the course of the hearing, both the applicant and the respondent gave evidence. The respondent was assisted by his son, and gave evidence through an interpreter.
As best as can be discerned from the material, the applicant claimed reimbursement of the $270 he had paid the respondent; $250 to replace a defective used muffler, which the respondent had fitted to the vehicle; and other costs (postage, copying, transport, obtaining a business name extract, and the use of a replacement vehicle for six months) totalling $466.70. The applicant’s case was that he had given the respondent notice of these additional costs on 2 January 2019, the day before the hearing.
At the conclusion of the hearing, the deputy president made an order in favour of the applicant in the sum of $250. In summary, the deputy president:
•upheld the applicant’s claim for the replacement of a new muffler valued at $250, the ‘old one’ which had been used by the respondent having been found to be defective;
•rejected the applicant’s claim for reimbursement of $270, because the respondent had performed work on the car’s motor, and no claim was made by the applicant that this work was defective; and
•rejected the applicant’s claims for the costs and expenses notified on the day before the hearing because the applicant had not given sufficient notice of these claims and/or they were ‘not sustainable at law’.[2]
[2]Weldemichael v Duy Tri Ha (Unreported, Victorian Civil and Administrative Tribunal, Deputy President I Lulham, 3 January 2019).
Being dissatisfied with VCAT’s decision to award him only $250, on 30 January 2019, the applicant filed an application for leave to appeal to the Supreme Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). In his amended notice of appeal, the applicant complained about VCAT’s failure to order a refund of the $270 he had paid the respondent, together with its failure to order ‘other costs and expenses’ – now totalling $1,484.45 ($1,017.76 more than was claimed by the applicant at VCAT on 3 January 2019).
The application for leave to appeal was heard by Ginnane J on 23 May 2022. On 22 December 2022, his Honour refused the application for leave to appeal and dismissed the applicant’s proceeding.[3] In doing so, his Honour said:
This case concerns a small claim, although I understand its importance to the parties, not least Mr Weldemichael. But it is a case largely turning on questions of fact that were for VCAT to decide. I do not consider that Mr Weldemichael has shown that the Deputy President made an error in his finding of fact about the agreement with Mr Ha and the work done on the car or in any other matter on which he seeks to appeal.[4]
[3]Weldemichael v Duy Tri Ha [2022] VSC 817.
[4]Ibid [31].
On 1 February 2023, the applicant filed an application for leave to appeal to this Court. The orders now sought by him include a claim for ‘consequential costs and expenses’ totalling $3,330.39.[5]
[5]This sum is made up of the $270 originally claimed at VCAT, what appears to be an additional and more substantial claim for car replacement (loss of use) costs, and various other disbursements.
The applicant’s proposed grounds of appeal are as follows:[6]
1.The Respondent for the outside contract agreement done is unlawful. For VCAT and for the SUPREME COURT I gave photos as evidence for the Respondent and his son misleading the exhaust, front, middle and rear. Previous repairs showed that someone had previously welded three sections together already. I gave photos of the exhaust rear and centre not welded together, centre and front were not welded together and I said the car investigated they did not account for relevant information. The Respondent for not in the contract agreement and did not need to replace the rear Muffler he replaced a used Muffler which has a hole in it. This evidence that the three exhaust systems were not welded together. For this factual evidence, the Judge did not give sufficient weight to the double standard, the error of interpreting facts wrongly deliberately. CONTRADICTION ON HIS STATEMENT, THE JUDGE THEY DO NOT GIVE SUFFICIENT WEIGHT.
2. How was that weight given to the Respondent document dated 3 January 2019 during the hearing given to me and the VCAT DEPUTY PRESIDENT L. LULHAM and no Signed and no written date? I gave for consequential costs and expenses I gave the Respondent on 2 January 2019 in his workshop with my friend and I gave to VCAT on 2 January 2019 before the hearing I have evidence of the VCAT stamps date as factual evidence. CONTRADICTION ON HIS STATEMENT $130.00 for welding the rear Muffler & $140.00 for engine services. This gave the Respondent in VCAT, and he wrote to the SUPREME COURT Proceeded to replace 4 spark plugs and adjusted the fuel pump so that it wouldn't over pump - This resolved the engine start issue, and the customer was able to start the car without issues. I did not charge extra for these services. This is the contradiction of his statement, that the Supreme Court Honourable Justice Ginnane did not give sufficient weight. The error of interpreting facts wrongly and deliberately. The Respondent's son in the VCAT hearing on 3 January 2019 was not witness he did not speak the truth and misleading to the DEPUTY PERSIDENT L. LULHAM. The Respondent had an interpreter, but his son spoke as Lawyer again and again wrongly and deliberately misleading the VCAT DEPUTY PERESIDENT L. LULHAM. The VCAT DEPUTY PRESIDENT L. LULHAM allowed the Respondent’s son as he wanted to mislead him. For the Centre exhaust pipe, I paid $270.00, and I have right to a refund by the Australia Consumer law Act, for that reason The Respondent broke the contract agreement. The VCAT DEPUTY PRESIDENT L. LULHAM his error of facts paragraphs 4, 5 and 8 in the Question of law in the NOTICE OF APPEAL dated 30 January 2019 the details I write for this he not consider the Supreme Court Honourable Justice Ginnane.
[6]The grounds are reproduced as typed in the application for leave to appeal and later corrected in documents delivered to the Court by the applicant on 7 September 2023.
At the same time as he filed his application for leave to appeal, the applicant filed a written case in support of that application.[7] The written case makes many assertions of fact; complains at a high level that the VCAT judgment was ‘wrong’; alleges that particular paragraphs of the VCAT judgment are ‘error facts’; alleges that what the respondent and/or his son said during the VCAT hearing was untrue and/or misleading; asserts that there were contradictions in the respondent’s case; and complains that Ginnane J ‘did not give sufficient weight to the double standard error interpreting facts wrongly deliberately for the Respondent and his son did not consider’.[8]
[7]This document was also the subject or corrections made in documents delivered to the Court by the applicant on 7 September 2023. See n 6.
[8]Cf the second last sentence of proposed ground 1 and the last sentence of proposed ground 2.
Pursuant to r 64.15 (1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[9]
[9]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.
Section 148(1) of the VCAT Act permits a party to appeal from an order of VCAT only on a question of law and only if the Court gives leave to appeal. As has been said many times before, a court hearing such an appeal, or an application for leave to appeal, is not entitled to enter into the fact‑finding exercise which the legislature has deliberately entrusted to VCAT.[10]
[10]Frontlink Pty Ltd v Commissioner of State Revenue [2023] VSC 521, [10] (Croft J).
A real difficulty for the applicant in the present case is that at no stage in the proceeding before Ginnane J did the applicant identify any actual error of law — much less one which was reasonably arguable. So much was carefully explained by his Honour to the applicant during the course of the hearing and in his Honour’s reasons for refusing leave to appeal. More particularly, there having been no identifiable error of law committed by the deputy president, the judge was bound to refuse the applicant’s application for leave to appeal.[11]
[11]See s 148(2A) of the VCAT Act.
In this Court, the applicant seeks to reagitate the matters he argued on his application for leave to appeal to the Trial Division. Again, and notwithstanding his attempts to badge some (or all) of his complaints as giving rise to questions of law,[12] the applicant has failed to articulate any viable error of law. His grounds of appeal and written case appear to be directed more to cavilling with the respondent’s son being permitted to assist the respondent during the VCAT hearing, various questions of fact and VCAT’s findings of fact.
[12]For example, see paragraph 6(b) of the version of the applicant’s written case dated 6 September 2023.
Having examined the evidence tendered at VCAT, and having read the transcript of the hearing conducted on 3 January 2019, it is clear that there is no basis upon which it could realistically be said that any error of law was made by the deputy president, either in the conduct of the hearing or in the order he ultimately made. The applicant bore the onus of establishing an entitlement to an award of a greater sum than that awarded by the deputy president. The applicant failed in that endeavour.[13] Contrary to the applicant’s contentions, his failure in that endeavour was not the product of any error of law.
[13]As to the difficulty faced by a party who bore the onus of proof seeking to overturn a finding made by a judge who has seen and heard the witnesses, see Dearman v Dearman (1908) 7 CLR 549, 553 (noting that that case concerned an appeal by way of rehearing rather than the more limited right of appeal by leave on a question of law available in the present case).
Similarly, there is no basis upon which it can sensibly be contended that it was not open to the deputy president to award the amount he awarded and no more. Specifically, there is no basis upon which it can be contended that VCAT was bound to award the applicant a greater sum than the amount actually awarded. The various complaints made by the applicant are, at base, complaints that the deputy president preferred the respondent’s case on the facts as presented to him during the VCAT hearing. The complaints about the respondent and/or his son telling lies (and the applicant being prevented by the deputy president from stopping this occurring) are not, on any view, vitiating errors of law. Likewise, there was no error of law involved in VCAT’s rejection of the applicant’s late claim for the additional sum of $466.70. The approach taken by deputy president was both correct and well justified.
The applicant’s proposed appeal has no prospects of success. It having no prospects of success, the applicant’s application for leave to appeal must be refused.[14] Additionally, the application for leave to appeal is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986.[15]
[14]See s 14C of the Supreme Court Act 1986.
[15]By reason of s 14D(3) of the Supreme Court Act 1986, the determination that the application for leave to appeal is totally without merit precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.

Conclusion

For the reasons given above, the application for leave to appeal will be refused.
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[2023] VSCA 230

22 September 2023