Keirl v Kelson [2004] VSC 224

Supreme Court of Victoria|2004-08-27|Before: Byrne J

Victorian Civil and Administrative Tribunal - Appeal - Bias - Conflict of fact -Whether notice of alleged bias should be given to Tribunal - Whether affidavits in support of order appealed from should be accepted.

The appellants, Karalyn Anne Keirl and Brian Edwin Keirl ("the Keirls"), appeal pursuant to s. 148 of the Victorian Civil and Administration Tribunal Act 1998 against four orders of the Small Claims Tribunal sitting at Geelong on 9 July 2003. There were in fact four applications before the Tribunal which arose out of the same or similar transactions and which were heard together; there were four orders and there are four appeals. The respondents to these appeals are Colin James Kelson (Proceeding No. 7400 of 2003), Tammy Helen Teplyj (Proceeding No. 7401 of 2003), Henry John Friday (Proceeding No. 7402 of 2003) and Anthony James Walker (Proceeding No. 7403 of 2003).

In brief, it was claimed that the Keirls, carrying on business under the name of Bay City Fencing, erected paling fencing pursuant to a contract of sale with each of the respondents. Each of the respondents alleged that the fencing was defective and sought compensation. The Tribunal found for each of the applicants before itand awarded damages as follows:

In each case, too, the Keirls were to remove the defective fencing.

Master Wheeler on 24 October 2003 certified in each case two questions of law:

1. Would any actions of the Tribunal member lead the appellants [the Keirls] to apprehend that he was biased against him?

2. Did the Tribunal deny the appellants "natural justice" in not permitting the appellants to lead evidence as to the state of other fences on the same estate to demonstrate that any defects in the fence were outside the appellants' control?

As I indicated in argument there is no substance in the second question. The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit. It is given broad powers as to the conduct of its procedure and must proceed in an informal and non-technical way[1]. It is, however, obliged to act fairly[2] and is bound by the rules of natural justice.

Accepting for present purposes that it would amount to a breach of natural justice for the Tribunal to refuse to receive relevant evidence offered by a litigant, such a breach has not been demonstrated here. It was said by the appellants that the Tribunal failed to receive in evidence certain photographs showing fencing other than that which is the subject of the proceedings, which had been erected on the same estate. It was said that these photographs showed cracking in the ground which would lead the Tribunal to conclude that any deficiencies in the fences the subject of the proceeding were the result of poor soil rather than poor workmanship. I should note that the evidence of the Tribunal member, William Raynham Holloway, was that he did receive these photographs; he did not indicate that they were irrelevant; and that he had regard to them in making his determination.

It is not necessary that I resolve this conflict. Accepting, for present purposes, that the photographs were rejected, I find no want of procedural fairness. Nothing is known of these other fences or of the contracts pursuant to which they were erected. The unknown reasons for the defects which the photographs depict cannot, without more, bear upon the issues before the Tribunal.

It may be helpful that I record at this point what I perceive these issues to be. In the details of their claims filed with VCAT, each of the respondents alleges that they agreed with the Keirls that Bayside Fencing would erect a paling fence. In such a contract it is implied that the fence will be erected with proper materials and in a workmanlike manner. It is also implicit that the fence, when erected, would be reasonably fit to stand for a period of time. The allegation is that the fence in each case became dilapidated within a short period of time. Since Mr Keirl was responsible for the selection of materials, for deciding the depth of the posts and the manner of fixing and generally for the erection of the fence, he would normally be held responsible for any failure where this is caused by some deficiency in his performance of these tasks. If the soil is bad, he will normally be expected to discover this and, if it is likely to affect the finished product, he should either draw this to the attention of his customers so that they might decide whether to accept the risk, or himself take such steps as are necessary to ensure that a proper fence is built. It will rarely be an answer to such a claim that he performed the work in a way that would be appropriate for normal soil but which turned out to be inappropriate for the soil in question; a competent tradesman is expected to deal with the situation as he finds it.

The production to the Tribunal of evidence of other failed fences, therefore, would not assist the cause of Mr Keirl. Depending upon the circumstances, it may show that the soil in this area was notoriously bad, a factor which he ought to have known and had regard to. The Tribunal was entitled to treat them as of no value for its task.

The first certified question is more troublesome and it is to this that I now turn. Three alleged acts of the Tribunal member, Mr Holloway, were the subject of complaint:

1. In the corridor outside the Court, he called the case to Court 3 in these terms:

"The case of the shonky fence is to be heard in Court Room 3."

2. He was engaged in conversation for some five minutes or more with the applicants and their spouses in the waiting room before the hearing commenced. No person on behalf of the Keirls was present.

3. At the conclusion of the hearing when Mr Keirl announced his intention of appealing, he laughed.

In an affidavit sworn on 3 October 2003 in response, Mr Walker put these facts in issue. His evidence is supported by affidavits of each of the other respondents which simply corroborate him. These affidavits, therefore, contradict the factual basis for the first and second complaints. Mr Walker says that no conversations or communications were held with Mr Holloway at any time prior to the hearing. A man, who was later identified as Mr Holloway, stood at the entrance to the area where Mr Walker and his group were waiting and said words to the effect: "If you lot are involved in the fence then you'd better get upstairs to Court 3 or they'll start without you". He then moved away. They then went upstairs to the courtroom where they entered through the public door. Mr Holloway then entered the courtroom through the Magistrate's door. This is what the respondents say.

I was pressed to prefer the detailed affidavits filed on behalf of the Keirls. These had an interval of some 20 minutes elapsing between the incident in the corridor and the entry of Mr Walker and his group. During that period Mrs Keirl who had gone outside looking for her son, returned and saw the member still in conversation with Mr Walker's group. She estimated that they had been in conversation for five minutes when she went inside the courtroom. She did not know that the person talking with Mr Walker's group was the Tribunal member. It was pointed out that the evidence in reply did not address this 20 minute interval and was simply a bald denial.

I start with the first complaint, that which had Mr Holloway announcing in public that the case he was about to hear concerned a shonky fence. This allegation is a serious one. If it was intended to be flippant, it was at best in poor taste. It would, in my view, in the circumstances of this case, satisfy the test for bias, warranting the setting aside of the VCAT orders.

A careful reading of the affidavits dealing with this matter, does not disclose a conflict as to what the Tribunal member announced in the corridor. It is clear that the statement about the shonky fence was not the same statement as that recorded by Mr Walker, for it occurred at a different time and at a place some distance from where he and the other respondents were waiting. Accordingly, the evidence of the Keirls is uncontradicted.

I have reflected on upon this second complaint, for it is a very serious matter. It would be very improper for a person about to exercise judicial functions to have private conversation with one of the litigants. If I found this to have occurred I would have no hesitation in remitting the matter for re-hearing before a differently constituted tribunal and with a stern rebuke to the errant judicial officer.

The affidavit of Mr Walker and those corroborating him also contradict the factual basis for the third complaint. Mr Walker says that after the decision was announced and Mr Keirl stated his intention to appeal, Mr Holloway did not laugh or make any similar gesture. He merely stated that the Keirls could appeal to the Supreme Court if they wished.

This complaint is, in my estimation, less serious than the other two. Even so, it depends upon my resolution of the factual conflict in the evidence as to what happened at the hearing.

I pause at this point to make a procedural observation. Section 148(6) of the Victorian Civil and Administrative Tribunal Act requires an appellant to "notify the principal registrar".[3] Presumably, this is a requirement that the appellant notify the registrar that an appeal has been brought. This was done in the present case by service upon the Tribunal at Geelong on 10 December 2003 of a sealed notice of appeal. I do not know whether, as a matter of procedure within the Tribunal, such a notice would be passed on to the Tribunal member whose orders were the subject of the appeals, or whether, in the present case, this document was in fact passed to him. Even if it were, the document would not convey very much to him for it merely recites the appeal and the questions of law which I have set out above. What it does not contain is any information as to the precise nature of or basis for the allegations of bias. In these circumstances a failure on the part of the member to deal with the serious factual allegations loses significance.

In the case of an order for review of a Magistrate's order the appellant is normally directed[4] to serve all material upon the Magistrates' Court. As I have mentioned, it happens in some cases that the Magistrate files an affidavit setting out what happened in the Court below. This practice is particularly helpful in those cases where the facts asserted by the appellant are not within the knowledge of the respondent, and particularly where these facts, as here, contain allegations of misconduct on the part of the Magistrate. Indeed, it was for this reason that Newton J in Buzatu v Vournazos[5] caused to be sent, with the knowledge of the parties, a letter to the Magistrate inviting him to resolve conflicts in the affidavit material as to what passed in his court[6]. This is the course which I followed and, having received an affidavit from Mr Holloway sworn on 7 July 1994, I reconvened the hearing to enable the parties to respond to or otherwise address its content.

In Stannard v Sperway Constructions Pty Ltd[7], Brooking J addressed an analogous situation in an application to remove an arbitrator for misconduct pursuant to s. 44 of the Commercial Arbitration Act 1984. His Honour expressed the view[8] that where such an allegation is made the arbitrator should be either made a party or served with the originating motion and the affidavit in support. While in some respects the position of such an arbitrator and that of a Tribunal member is different, his Honour's general observations touch a case such as the present:

"I must say it seems to me to be wrong for the court to determine whether an arbitrator has been guilty of misconduct without giving him an opportunity to defend himself. This is particularly so where the allegation is not one of `technical' misconduct, although even in the case of supposed `technical' misconduct it seems to me that the arbitrator has a right to be heard. In Port Sudan Cotton Co. v. Chettiar & Sons[9], Donaldson J. observed: `The modern practice is for a notice of motion alleging misconduct, whether technical or actual, to be served upon the arbitrator or umpire concerned. He then has a choice whether to (a) take a full part in the proceedings as an active party or (b) to file an affidavit setting out any facts which he considers may be of assistance to the Court or (c) to take no action, in which case it will be assumed only that he has no wish to do more than accept the decision of the Court. This practice is based upon the consideration of natural justice that no one should have his conduct criticised without being given an opportunity for replying or explaining.' There are, I think, two reasons why notice of the application should be given to the arbitrator. The first is that fairness demands it and the second is that the court may be assisted by hearing from the arbitrator."[10]

For the same reasons, I am of opinion that where an allegation of misconduct is directed to a Tribunal member as a ground for appeal under s. 148 of the Victorian Civil and Administrative Tribunal Act, the Master giving directions should ordinarily direct, pursuant to Chapter II R. 4.09, that the affidavits and exhibits in which those allegations are made be served on the Tribunal so that it can form a view as to the appropriate response, if any, that should be made.

As a result of my invitation and in the light of Mr Holloway's affidavit, the Keirls filed further affidavits and Mr Walker responded. At the resumed hearing, notices to attend for cross-examination were served on the respondents and I permitted each of them to be cross-examined. No notice was served on Mr Holloway because, it was said, he enjoyed immunity under s. 143(1) of the Victorian Civil and Administrative Tribunal Act and, further, because his affidavit was not filed on behalf of a party to the proceedings. Accordingly, Rule 40.04 had no application. I doubt whether either of these is a good reason for not giving notice that he attend for cross-examination, but I accept that the decision of counsel for the appellants not to do so is not to be taken as an indication that Mr Holloway's affidavit evidence is not challenged. I permitted, also, that Mr and Mrs Keirl be cross-examined by Mr Walker.

The end result of this was to expose the essential conflicts between the two camps of witnesses as to the factual bases for the three complaints of bias and evidence of Mr Holloway, which essentially supported that of the respondents.

I record, too, my impression that each of the witnesses before me was honestly attempting to recall the events of twelve months ago. None of them was shaken in cross-examination. Indeed, in many cases, the detail that emerged in their evidence served to confirm my view as to their reliability.

There is in this Court a rather arbitrary rule of practice whereby, in appeals from the decisions of The Magistrates' Court the evidence of the party which supports the order appealed from is accepted as being correct[11]. In Thomson v Lee[12], Mann CJ spoke of the rule providing that answering affidavits are regarded as conclusive of questions of what happened in the court below. His Honour, however, was careful to emphasise that this was merely a working rule and one which should not be taken absolutely. In Lindgran v Lindgran[13], Smith J said that a rule such as this was necessary in order to resolve conflicts because it was generally considered undesirable to permit cross-examination of deponents in such cases. Where, however, the conflict is capable of resolution, the court may decline to apply the rule in cases where there is another way of producing a just result. Moreover, where there is an affidavit from the magistrate, this will normally be accepted unless some clear reason appears for supposing that there is some error or omission in it[14]. This is because the evidence of a non-party will usually be preferred to that of an interested party.

In approaching the question of conflicting evidence in this case, I bear in mind that my primary task is to discover, if I can, where the truth lies. This said, I will not put to one side the wisdom to be found in the judgments of this Court for over a century. Finally, I bear in mind that, in this case, I have had the benefit of seeing all of the deponents, other than Mr Holloway, tested in cross-examination.

Having regard to these matters, I accept and will act upon the evidence of the respondents and Mr Holloway. I was, with respect to his affidavit, pressed with certain discrepancies between his account and that accepted by all of the other witnesses, with the fact that it was prepared at a point in time more remote from the events than the affidavits of the Keirls, and with the fact that his recollection lacks the support of any contemporaneous notes. I have had regard to these matters and, even so, I will act upon the account which he and the respondents give.

I am satisfied on the balance of probabilities that the factual bases for the three complaints of bias are not made out: Mr Holloway did not describe the case in the public area as one concerning a shonky fence; he did not have private conversation with the respondents before the hearing; and he did not laugh at the prospect of appeal.

It follows from this that bias has not been established and the appeals must be dismissed. I propose to order, therefore, that the appeal in each case be dismissed with costs including reserved costs to be paid by the appellants.

[1] Victorian Civil and Administrative Tribunal Act s. 98(1).

[2] Victorian Civil and Administrative Tribunal Act s. 97.

[3] See also RSC Ch II RR. 4.06(4)(a), 4.11(2)(a).

[6] See too Thomson v Cross [1954] VicLawRp 89; [1954] VLR 635 at 637, per Sholl J; Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215 at 221, per Smith J.

[11] Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215 at 221, per Smith J.

[14] Aherne v Freeman [1974] VicRp 17; [1974] VR 121 at 123, per Crockett J.

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties