Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264

[2023] VSCA 264

Court of Appeal (Vic)|2023-10-31|Before: Quigley J, Niall JA

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General information, not legal advice.

Judgment (13 paragraphs)

[1]

The applicant advances the following proposed grounds of appeal:
1. Sections 3, 97, 98 and 100 of the [Act] have NOT been correctly applied by [the President] as outlined in her order 1 and commensurate reasons of 21st September 2022.
2. Sections 3, 97, 98 and 108 of the [Act] have NOT been correctly applied by [the President] as outlined in her order 2 and commensurate reasons of 21st September 2022.
3. It is further correctly put forward that in view of [the Tribunal's] subsequent orders of 21st September 2022 in the [Tribunal] proceeding in the context of BOTH the actions (orders) made and the reasons outlined, the Applicant's requested application for the reconstitution of the current Tribunal in the [Tribunal] proceeding has still NOT been undertaken. Accordingly, the requested orders with respect to the reconstitution of the current Tribunal ('reconstitution') in the [Tribunal] proceeding as outlined in the appellant's NOTICE OF APPEAL dated 8th September 2022 in the related existing 'court proceeding' in the Trial Division is maintained and MUST remain very much legally validly on foot. In view of the legal errors made, the appeal of [the Tribunal's] orders of 21st September 2022 in the Court of Appeal is still nonetheless required to be undertaken, and can be processed separately. It is highlighted, however, that it is envisaged that this appeal in the Court of Appeal will be required to be determined PRIOR to the determination of the existing appeal in the related existing 'court proceeding' in the Trial Division in view of the orders in relation to the reconstitution requested in that 'court proceeding'.
The applicant submits that there is an inconsistency in the President's observation that, for the purpose of s 100, there was a 'hearing' on the papers but for the purpose of s 108 a hearing meant the final hearing of the substantive proceeding. The applicant submits that such an inconsistent approach evidenced bias on the part of the President.
With respect to the President's finding that s 108 has a temporal component and may only be enlivened when there is an actual hearing of the proceeding on foot, the applicant submits that s 108 only has an end point, and not a starting point. The applicant submits that in providing for an application 'At any time before the conclusion of the hearing of a proceeding', s 108 is silent on whether a party may apply to the Tribunal for reconstitution prior to an actual hearing commencing.

Even if this Court is satisfied that an appeal has a real prospect of success, it may nevertheless refuse to grant leave in the exercise of its residual discretion, such as when no substantial injustice will be done if the decision at first instance stands, or the order sought to be appealed against is one of practice and procedure. The question of leave may sometimes be approached by considering, first, whether discretionary considerations exist which justify a refusal of leave, regardless of an applicant's prospects of success. Where discretionary considerations exist but by themselves are insufficient to justify a refusal of leave, refusal may nevertheless be warranted where those discretionary considerations arise in the context of an appeal that has low, albeit real, prospects of success.[10]

In my view, s 108 is an administrative or facultative provision that enables the President to 'reconstitute' the Tribunal. It is plainly intended to cover the situation in which a member who has been allocated to hear the proceeding is unavailable or unable to complete the hearing and determination of the proceeding. There may be a raft of reasons why a member may not be in a position to complete the hearing of the proceeding. An important aspect of the provision is that, by s 108(3), in the event that the Tribunal is reconstituted, the Tribunal may have regard to any record of the proceeding as previously constituted including a record of the evidence. The plain purpose of this is to avoid unnecessary duplication and enable the completion of the matter with a minimum of disruption and waste.
The power is not intended to allow a party to seek to veto or influence the administrative decision to allocate a member to hear and determine a proceeding. It is a fundamental precept that parties do not get to choose the member which will hear their case. That type of forum shopping, if it were permitted, would undermine the independence and impartiality of the Tribunal in a most serious way. Nor is it intended to give the President a right of appeal or review over decisions made, or not made, by a member during the course of a proceeding.
On its plain terms, and consistently with its purpose, s 108 applies where a member has been allocated to hear the proceeding. Section 108 enables the President to 'reconstitute' the Tribunal. It does not deal with the initial decision to allocate a matter.[11] If a member has not been allocated, the Tribunal has not been constituted to hear the proceeding and self-evidently it cannot be 'reconstituted'. On the facts as found by the President, the proceeding had not been constituted for the purpose of a hearing and so no issue of reconstitution had arisen.
Further and more importantly, in my view, this matter is entirely unsuitable for this Court to consider whether s 108 might apply where no substantive hearing had been allocated to a member. That is because after the decision of the President, DP Lulham determined a strike out application and SM Vassie heard a directions hearing. On each of those occasions the applicant made an application that the member recuse themselves. Those applications were determined by the member sitting on the basis of the current state of affairs. In respect of SM Vassie that decision has been the subject of an appeal, including on grounds of apprehended bias, and which has been heard by a judge in the Trial Division and stands reserved.
Events have overtaken the decision of the President. Given that the applicant has subsequently asked each member to disqualify themselves on the grounds of bias no point would be served by giving leave to appeal on an earlier decision of the President. In respect of the applicant's complaint about the orders of SM Vassie, it is inappropriate for the applicant to seek to challenge those orders in two different proceedings and his substantive complaint is currently reserved before another judge of the Court.
It is very important that an appeal under s 148 of the Act not compound, delay or frustrate the orderly determination of proceedings. Refusing leave to appeal will not in any way deny the applicant the entitlement of having his matter heard and determined by a member who is free from apprehended or actual bias. Should the applicant have a proper basis to make such an application, it should be determined in the usual way by the member hearing the application and in respect of whom the complaint is made. Indeed, in respect of SM Vassie the applicant has appealed a later decision on the ground of bias. In saying that this is the appropriate course, I should not be taken to be offering any encouragement to make such an application. An application for a member to disqualify themselves should never be merely as a reflex to an unfavourable decision and should only be made where there is a proper factual and legal foundation.
For these reasons there is no injustice in refusing leave and no justification for this Court to fragment the interlocutory steps which will only cause expense and delay.
Leave to appeal is refused.

Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264

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Judgment (13 paragraphs)

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Legislation Cited (2)

Cases Cited (2)

Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264 (31 October 2023)