12 It is to be noted that the final question in this exchange was not "And this is your claim, is it?". It was "So, in all, you've paid to the respondent that amount, have you?" It is also to be noted that this passage immediately precedes the senior member's question referring to the quote for replacement of clear laminated safety glass where the senior member asked "That's part of your claim, is it?"
13 Given the exchanges revealed in the passages to which I have referred above, I reject the submission that the appellants sought one form of relief, restitution, to the exclusion of all other forms. I also think that it was in the particular circumstances of this case incumbent on the Tribunal to explain to the appellants the alternative forms of relief available; to explain what restitution entailed; and to enquire of the appellants whether that was the relief which they sought.
14 The respondent submitted that this is to place too great a burden on the Tribunal. I disagree. The form of relief to be granted to a successful claimant must always be addressed by the court or tribunal whether or not that aspect of the case is in issue in the sense of being in contest. It is not difficult and it involves no necessary element of partisanship to explain any alternatives in the possible forms of relief, and to enquire of an unrepresented party what relief it seeks and of the other (represented or not) whether the grant of that relief is opposed.
15 In this case, it ought to have been clear, it seems to me with respect, that an order to return the windows might cause difficulty. Even if in February the Tribunal was not aware that the windows were fixed to the building, that possibility clearly remained. As the senior member himself commented on 4 July, "They [the appellants] perhaps should have foreseen that in seeking a refund they would have to return the goods if they were successful and that this might mean disengaging the frames from their premises". It seems to me, with respect, that the senior member ought equally to have foreseen the same problem himself. He, after all, is what the appellants were not: a lawyer with presumably an adequate or better knowledge of the law relating to restitution and an appreciation of the problems which arise if restitution in integrum cannot be effected.
16 In coming to the conclusion that the Tribunal failed to act in accordance with s.97 of the Victorian Civil and Administrative Tribunal Act 1998, I also take into account the fact that on 4 July the Tribunal failed to make any allowance for the circumstance, put clearly to it by the appellants, that an order to return the window frames within seven days could not be complied with. The Tribunal gave no reason for its failure to address this aspect of the case and no reason for providing in its order that the windows be returned within seven days. That in itself, it seems to me, was a result which was not fair; and accordingly was not in accordance with s.97. More substantially, it seems to me that a result which in the circumstances might be unjust to the appellants by requiring them to return window frames, which in turn would necessitate damage to their building, would not be in accord with the substantial merits of the case. It also seems to me that because the Tribunal is bound to act in accordance with those substantial merits, any failure to do so must involve a failure to act in accordance with law and therefore be the proper subject of an appeal.
17 There is not sufficient evidence before me to enable me to decide what is now the proper form of relief. That decision must, it seems to me, remain with the Tribunal; and this matter must be remitted to it for the determination of that question. It may be that the parties will need to call evidence when the matter does go back to the Tribunal so that a proper and properly informed decision about the appropriate relief can be made. There is nothing before me to indicate that the failure to return the window frames would cause the respondent an injustice; but it is certainly open to the respondent to argue that such would be the result. It seems to me that I should require of the Tribunal that it consider the arguments put to it by both sides on the question of the appropriate remedy and, having regard to the relevant evidence and submissions, come to a decision which accords with s.97.
18 For those reasons I propose to allow the appeal and direct that the matter be remitted to the Tribunal for determination of the appropriate relief to which the appellants are, in the circumstances, entitled.