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[2022] VSC 256
General information, not legal advice.
Supreme Court of Victoria
2022-05-20
Forbes J
Original judgment source is linked above.
The applicant gave various answers on this question, some of which disputed an oral agreement but at other times conceded there was a verbal agreement which he appeared to believe was not binding until it was formalised. In the context of the questions and explanations given through the hearing, the form of the 9 July orders and the matters recorded in those orders, the reasons of the Member for preferring the evidence of Yang on this question may be plainly understood.
67 Secondly, the issue of whether the money paid pursuant to the agreement was returned was not in my view irrelevant to the question before the Tribunal. First, it was relevant because the applicant agreed that he had given his particular bank details during the compulsory conference. This was capable of informing the question of whether there had been an oral agreement at the time to accept the sum offered.
68 The applicant took issue with the issue of return of the money saying 'I wasn't told to return it back and Mr Yang certainly doesn't want the money back'. The Member said:
But that's not determinative - I mean it's a factor I take into account....On the evidence I find that the parties intended to be bound immediately, so that's why - and so therefore the fact that the terms of settlement have been given effect to, it's just, - irrespective of whether it's been repaid really. I'm simply noting that, but having said that, I have already formed a view that there was a settlement.
The applicant said he was unaware of any 14-day time limit for payment. However, the critical fact is not when the money was paid. The Tribunal did inform the applicant that it was a matter for him whether to repay the $2000 to Yang but that whether or not he does so is likely to be relevant to the question of whether the application should be reinstated. It was suggested that legal advice on the question be obtained.[35] Despite that information, the applicant elected not to repay the money prior to the reinstatement hearing. He said this was because he did not have details of how to return it. The Tribunal unsurprisingly took the view that the respondent had fulfilled his part of the agreement and the applicant retained the funds paid in fulfilment of that obligation.
69 The applicant's alternative argument, that he did agree, but he was under unfair pressure to do so, was not supported by any evidence before the Tribunal. It was raised by the applicant in his letter the day after the compulsory conference in which he said he felt under pressure to accept a lesser sum.
70 The applicant's written argument in support of reinstatement which was dated 23 August 2020 described feeling pressured because of a mental illness (which he described as anxiety, depression, dementia and PTSD) and poor health (arthritis, hypertension and type 2 diabetes). There is no suggestion that such an assertion was raised before Senior Member Smithers. It was first raised in correspondence to Yang on 10 July 2020.[36] During the reinstatement application the applicant only raised the issue in response to a final question from the Tribunal as to whether he had anything further he wished to say. He said he was unhappy with the situation, it seemed 'so unfair' and that feeling under pressure he 'can't remember everything that was said...or discussed'. There was no suggestion by medical evidence or otherwise that his capacity to make a decision was impaired or that he sought additional time from Senior Member Smithers to consider the matter. Given the lack of evidence or any submission squarely put to Member Joseph on this issue, it is unsurprising that the reasons did not avert to it.
71 The reasons, though brief, properly conveyed to the parties that the Tribunal was satisfied that the parties had consented to the 9 July orders on the basis of an agreement that Yang would pay to the applicant the sum of $2,000. The Tribunal did not accept that the settlement document was an offer by Yang. The reasons also conveyed to the parties a finding that the settlement document prepared by Yang was not agreed to and not signed. Therefore, the only agreement was an oral agreement. The 9 July orders permitted an application for reinstatement, not a right to reinstatement and the applicant failed to persuade the Tribunal that the agreement upon which the 9 July orders were made should be revisited.
72 In the circumstances, I would give leave to appeal on the basis of ground 4 as reframed by the applicant's counsel only but dismiss the appeal.
[1] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 (1) ('VCAT Act').
[2] [2014] VSCA 304 (Weinberg, Whelan and Santamaria JJA).
[3] [2015] VSCA 84 (R Osborn and Kaye JJA).
[4] Competition and Consumer Act 2010 (Cth), sch 2, s 184.
[5] Email to the Principal Registrar of VCAT dated 11 July 2020 at 8:25am.
[6] Transcript of Proceedings, Lin Seng Soo v Paul Vale Criminal Law (Victorian Civil and Administrative Tribunal, J49/2020, Member Smithers, 1 September 2020) 2.28 ('T').
[7] The application for the reinstatement hearing was included at Court Book 167.
[9] Applicant, 'Affidavit of Lin Seng Soo', Affidavit in the matter of Lin Seng Soo v Chen Yang of Paul Vale Criminal Law S ECI 2020 03767, 27 September 2020, [11] setting out the applicant's belief; see also T 3.11-14.
[13] Tomasevic v Travaglini [2007] VSC 337.
[15] [2008] VCAT 1479, [57] - [58].
[17] Carr & Anor v Finance Corp of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 ('Carr'); [1981] HCA 20.
[18] Carr (n 17) [248]. See also R v McGowan; Ex parte Macko & Sanderson [1984] VicRp 78; (1984) VR 1000 (Kaye J) on whether of a Magistrates' Court order striking out criminal charges a is a final order, and Guss v Johnstone, unreported Beach J 94/4038, 23 March 1994 in relation to an order striking out a civil proceeding in the Magistrates Court.
[20] Citing its quotation and application by Zammit J (now Incerti J) in Victorian Legal Services Commissioner v Harle [2015] VSC 697.
[21] (2009) 23 VR 100, 173 ('Turner').
[26] Woolworths Ltd v Warfe [2013] VSCA 22, [131] (Kaye AJA).
[28] SMA Projects Australia v Jovanovic [2006] VSC 176, [39] (Mandie J).
[30] [2015] VSCA 126, [52] (Hansen, Ferguson, McLeish JJA).
[35] Emails from the Customer Services Officer of VCAT dated 29 July 2020 and 4 August 2020, Court Book 344.
Soo
Yang & Vale Pty Ltd [2022] VSC 256