Xu v Director of Housing

[2008] VSC 82

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5230 of 2007

JOHN (ZHIQIANG) XU	Appellant
v
DIRECTOR OF HOUSING	Respondent

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2008
DATE OF JUDGMENT:	26 March 2008
CASE MAY BE CITED AS:	Xu v Director of Housing
MEDIUM NEUTRAL CITATION:	[2008] VSC 82

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Administrative law - Appeal from Victorian Civil and Administrative Tribunal – Procedural fairness – Appellant appearing in person – Whether Tribunal should inform such an appellant of the consequence of failing to call witnesses or make them available for cross-examination – Respondent conceded error of law – Appellant applied for adjournment – Appeal allowed – Matter remitted to Tribunal for re-hearing.

Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Appellant in person
For the Respondent	Ms D S Mortimer SC and Mr A T Kincaid	Legal Services Branch Department of Human Services

HIS HONOUR:

1. The appellant, John (Zhiqiang) Xu, appeals from an order made by the Victorian Civil and Administrative Tribunal (the Tribunal) on 23 February 2007 dismissing his application brought under s 75 of the Residential Tenancies Act 1997.  The appellant had sought orders requiring the landlord to carry out specific repairs pursuant to the duty imposed on landlords under s 68 of the Act to maintain premises in good repair.

1. The appeal was set down for hearing today.  The appellant applied for an adjournment of his appeal notwithstanding the respondent’s concession that a threshold ground was made out invalidating the order of the Tribunal and that consequential orders should be made allowing the appeal with costs and returning the matter for determination by the Tribunal according to law.

1. The appellant was unrepresented before me.  Although English is not his first language I had no difficulty understanding the substance of his submission.  The appellant is concerned about the time taken for the resolution of his housing complaint before the Tribunal.  He believes that he has been treated unfairly by the Tribunal and now wants to have all issues determined by this Court.  He seeks an adjournment to enable him to place further submissions before this Court in support of his case presently before the Tribunal in the hope that this Court will grant him final relief.  He also complained that the respondent’s submissions in relation to this appeal had not been delivered within the time prescribed by an order of Master Kings and said that he had only recently received an affidavit filed on behalf of the respondent. 

1. At the conclusion of the hearing I delivered reasons ex tempore.  These were apparently not recorded and the appellant has sought written reasons.

1. The appellant’s appeal is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998.  An appeal from the Tribunal may only be brought on a question of law and then only with leave.  Leave was granted by Master Daly on 24 July 2007.

1. The questions of law formulated by the appellant and his grounds of appeal fall into two broad categories.  At the threshold is a complaint by the appellant that the Tribunal failed to accord him procedural fairness and natural justice “by failing to advise the appellant that [the Tribunal] had preferred the respondent’s witnesses if the appellant’s expert witnesses did not provide oral evidence or were made available for cross-examination”.  The other category of errors and grounds identified by the appellant in his Notice of Appeal concern matters which, for the most part, depend for their resolution upon a view of the evidence.  The appellant’s threshold complaint, if made out, necessarily infects the evidentiary matrix under consideration by the Tribunal. 

1. Thus, if the appellant is successful on his threshold ground of appeal, because he was denied procedural fairness in the manner alleged, at least two consequences follow:  first, the decision of the Tribunal is invalid and should be set aside.  Second, a new tribunal may take a different view of the evidence, particularly if the appellant calls his witnesses or makes them available for cross-examination. 

1. The respondent is the Director of Housing who conceded before me that the threshold ground of appeal advanced by the appellant was soundly based and submitted that I should make an order allowing the appeal, setting aside the order made by the Tribunal and remit the matter to the Tribunal “to be differently constituted” for determination according to law.  The respondent also agreed to pay the appellant’s costs of his appeal to be taxed in default of agreement.  The appellant, however, does not consent to such an order. 

1. The respondent accepted that the Tribunal should have, but did not, warn the appellant of the consequence of failing to call his expert witnesses and of failing to expose their opinions to cross-examination.  The appellant was unrepresented before the Tribunal.  Despite not having given the appellant such a warning the Tribunal relied on his failure to call those witnesses.  The respondent concedes that this was not a consequence which the appellant, as a layperson, and as a person whose first language is not English, could reasonably be expected to know or appreciate.  The respondent concedes that this resulted in a denial of procedural fairness making it appropriate that the proposed orders be made and the matter to be remitted to the Tribunal to be reheard.  In my opinion the respondent’s concession is correctly made.

1. I would ordinarily be reluctant to refuse an application for adjournment by a litigant in person who wishes to better prepare his case.  The circumstances of this case are, however, exceptional.

1. The proposed orders conform with the relief sought by the appellant in paragraphs 1, 2 and 4 of his prayer for relief in his Notice of Appeal.  In paragraph 3 the appellant seeks to have this Court determine his application before VCAT.

1. The respondent correctly concedes that the threshold complaint by the appellant is made out and offers to pay the appellant’s costs.  The concession made by the respondent of a denial of natural justice or procedural fairness is well-founded:  see for example Tomasevic v Travaglini[1] and, in particular, at paras [54ff] and [92]. In my opinion the Tribunal should have explained to the appellant the consequence of his failure to call oral evidence from his witnesses or expose them to cross-examination.

   [1][2007] VSC 337.

1. This is not a case where this Court would “determine the appellant’s claim in VCAT”, without remitting it to the Tribunal.  The threshold error has the effect of invalidating the decision and order made by the Tribunal.  At a re‑hearing before VCAT the evidence and the view taken by the Tribunal of the evidence may be quite different.  The appropriate tribunal to assess the evidence is VCAT.

1. To adjourn this matter at the request of the appellant would bring about further delay and would not, in my view, serve his best interests.  This is particularly so when one complaint he makes is that of the delay in the proceeding thus far.  This Court should do the best it can to expedite a determination of litigation.  In my opinion the most expedient way to have the appellant’s complaints before the Tribunal quickly and fairly determined is to remit the matter to the Tribunal for determination according to law. 

1. In the circumstances, I have decided to refuse the application for an adjournment and to make the orders sought by the respondent.

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