1. On 26 March 2019 the Tribunal heard and determined two applications by the Landlord for possession orders against the Tenant. Each application was in relation to different rented premises.
2. This proceeding was the second application to be heard on 26 March 2019. Both applications were heard by the same Member.
3. The Tenant was represented by Raymond Yew during the first of the two applications dealt with on 26 March 2019 ("the First Proceeding"). At the conclusion of the First Proceeding the presiding Member made a possession order against the Tenant. The Member then proceeded to hear this proceeding.
4. A review of the Tribunal's file for the First Proceeding shows that the order in the First Proceeding was completed by the Member on the Tribunal's computer system at 10.39 am on 26 March 2019. The appearance sheet[6] completed by the presiding Member on the file for this proceeding shows that a representative of the Tenant was present, but "left the hearing room at 10.53 am". That is, the presiding Member recorded that the Tenant's representative in this proceeding left the hearing room 14 minutes after the completion of the order by the Member in the First Proceeding.
5. The hearing of the Landlord's application continued in the absence of the Tenant. At the conclusion of the hearing the Member made the Order which the Tenant now seeks to have re-heard on its merits.

The Tenant's Application for Review and Re-Hearing

1. The Order was made on 26 March 2019. The Tenant's application for review and re-hearing is dated 29 March 2019 and was received by the Tribunal by email at 5.38 pm on that date. The application was lodged under cover of an email sent by Raymond Yew. In the email signature block Mr Yew describes himself as "Legal Counsel".
2. I find that the application for review and re-hearing was made within the prescribed time frame, and as such, the first matter upon which the Tribunal must be satisfied has been met.
3. As set out above, the presiding Member recorded on the day that the Tenant's representative left the hearing room at 10.53 am. The record made by the Member shows that the Tenant was present at the hearing.
4. In the Tenant's application for review, under the heading "The reason I did not attend, and I was not represented at the original hearing is,:" the Tenant has said:

"Our company had asked [the presiding member] to recuse herself due to her apparent biasness on the previous matter. She denied our request. Our company then exercised its right to apply for a reconstitution of the Tribunal. It was again denied by [the presiding member]. She informed the company that she would continue to preside over the matter and told the company's representatives they should leave. The company's representatives left the hearing."

1. At the hearing of the application for review before me the Tenant's director Ms Xu submitted that the Tenant had been represented at the hearing on 26 March 2019 but withdrew from the hearing after the applications for recusal and reconstitution of the Tribunal was refused by the presiding Member.
2. After a short break in the hearing, which I allowed at the request of Ms Xu to enable her and Mr Youl to obtain advice, Ms Xu appeared to alter her evidence and submissions in relation to the events of 26 March 2019.
3. Ms Xu submitted that the application for reconstitution had been made in relation to the First Proceeding, and that the company's representative, Mr Yew, withdrew from the hearing of the First Proceeding prior to its completion. Ms Xu submitted that Mr Yew had been instructed to leave the hearing by the Presiding Member.
4. The Landlord was represented by Mr Ting at the hearing before me. He also represented the Landlord at the hearing of this proceeding on 26 March 2019.
5. Mr Ting gave evidence to me that Mr Yew withdrew from the hearing of this proceeding on 26 March 2019 after the presiding Member had refused the applications for recusal and reconstitution of the Tribunal saying to the presiding Member that the Tenant "will now excuse itself from the hearing". He strenuously rejected the submission of Ms Xu that the recusal and reconstitution applications had been made in relation to the First Proceeding. Furthermore, he rejected the submission that the presiding Member had directed Mr Yew to leave the hearing room.
6. Mr Ting said that the basis of the recusal and reconstitution applications on 26 March 2019 had been an allegation that the presiding Member was biased against the Tenant because she had made a possession order against it in the First Proceeding.
7. Ms Xu disputed Mr Ting's evidence and said that she had been told by Mr Yew that the recusal and reconstitution applications had been made in relation to the First Proceeding and that the presiding Member had directed Mr Yew to leave the hearing room.
8. Mr Yew did not attend the hearing on 09 May 2019 before me. When I asked where Mr Yew was, I was told that he was no longer in the employ of the Tenant. I was not provided with any explanation as to why he could not have been asked to attend the hearing, or had a summons given to him to compel attendance.

1. The application for review states that the presiding Member was asked to "recuse herself due to her apparent biasness on the previous matter". In my opinion this shows that the applications for recusal and reconstitution were made during the conduct of this proceeding on 26 March 2019. There would be no logical point in making an application for recusal and or reconstitution in a proceeding after the final order had been made by the Tribunal.
2. Furthermore, the application for review and re-hearing also states that the presiding Member informed the Tenant after the refusal of the recusal and reconstitution applications "that she would continue to preside over the matter..." (emphasis added). Again, I infer from this wording that the applications for recusal and reconstitution were made during the course of the hearing of this proceeding and as such could only have been made if the Tenant was present or represented at the hearing.
3. The evidence of Ms Xu and Mr Ting as to the events of 26 March 2019 are at odds with each other. Where the Tribunal is presented with contradictory evidence in relation to the same incident or event, the Tribunal must determine which of the competing versions it considers more likely than not to have occurred.
4. Neither Ms Xu or Mr Youl were present at the hearing on 26 March 2019. Mr Yew did attend on behalf of the Tenant on 26 March 2019 but did not attend the hearing before me.
5. Mr Ting was present and gave sworn evidence before me as to the events of 26 March 2019.
6. Ms Xu gave evidence and made submissions as to what she says she was told by Mr Yew occurred on 26 March 2019. The Tribunal is not bound by the rules of evidence[7] and can in theory take in to account evidence that may be excluded by the rules of evidence in the courts.
7. In this hearing I have sworn evidence of a person who was present and involved in the hearing of 26 March 2019 and evidence of a person who was not present on 26 March 2019 but has told the Tribunal what she says she was told by a person who was present at the hearing on 26 March 2019 but was not present in the hearing before me.
8. Despite the Tribunal not being bound by the rules of evidence, the sworn evidence of Mr Ting is to be preferred to the evidence of Ms Xu. Mr Ting was able to give me first hand evidence of the events of the hearing on 26 March 2019.
9. I find that the applications for recusal and reconstitution were made on behalf of the Tenant in relation to the hearing of this proceeding on 26 March 2019.
10. The presiding Member is a very experienced member of the Tribunal. The allegation made on behalf of the Tenant that the presiding Member excluded the Tenant's representative from the hearing is an extremely serious allegation to make. In the absence of clear and unequivocal evidence to the contrary I do not accept that the presiding Member would have directed the Tenant's representative to leave a hearing during the course of the hearing.
11. The only evidence before me as to the circumstances of Mr Yew withdrawing from the hearing on 26 March 2019 is the sworn evidence of Mr Ting. He strenuously rejected the contention of the Tenant that the presiding Member had directed Mr Yew to leave the hearing room.
12. I find that the Tenant's representative made applications for recusal and reconstitution to the presiding Member at the commencement of the hearing of this proceeding on 26 March 2019. I further find that it is more likely than not that upon the refusal of each of the applications that the Tenant's representative then withdrew from the hearing of his own accord and not upon the direction of the presiding Member. This is consistent with the note made by the presiding Member on the Tribunal's file and the wording of the application for review lodged on behalf of the Tenant by Mr Yew.
13. It follows from the findings made above that the Tenant was represented at the hearing on 26 March 2019. An application may only be made pursuant to section 120 of the VCAT Act "if an order was made; the order was made at a hearing; and the person against whom the order was made did not appear and was not represented at the hearing"[8]. The Tribunal finds that the Order was made at a hearing and that the Tenant was represented at that hearing.
14. As a result of the findings I have made as set out above, it is not necessary to consider whether the Tenant had a reasonable case to argue in relation to the subject of the original order. The Tenant had the opportunity to make that argument on 26 March 2019 but chose instead to remove itself from the hearing then in progress.
15. The Tenant's application for review and re-hearing will be dismissed.

1. After hearing the parties submissions and evidence as to the events of 26 March 2019 and the question as to whether the Tenant had been represented at the hearing on that date I advised the parties I would consider that question and publish my decision and reasons as quickly as possible.
2. Mr Ting made an application for costs to be awarded against the Tenant in the event I decided that the Tenant's application for review and re-hearing was to be dismissed. He sought costs based on the Magistrates Court Scale of Costs of $1958.00 for general preparation for the hearing of 09 May 2019 and $380 for his appearance on behalf of the Landlord at the hearing on 09 May 2019.
3. Mr Ting submitted that the application for review and re-hearing by the Tenant was vexatious and without any merit. He further submitted that the representative of the Tenant present on 26 March 2019 is a practising lawyer and should have realised there were no grounds for seeking a review of the Order.
4. Mr Youl submitted that any application for costs was "patently ridiculous" and that by making the application for review and re-hearing the Tenant was merely seeking the opportunity to defend itself against what he said was unfair treatment on 26 March 2019[9].
5. The Tribunal's power to award costs against a party is set out in section 109 of the VCAT Act. Section 109(1) provides that each party is to bear their own costs in a proceeding before the Tribunal. The Tribunal can only make an order for costs against a party if it is considered fair to do so after considering the factors set out in section 109(3) of the VCAT Act.
6. One of the factors set out in section 109(3) is whether a party has vexatiously conducted a proceeding[10]. The reference to "vexatiously conducting a proceeding" has been held to relate to the manner in which the party conducts the proceeding rather than whether the proceeding itself was vexatious[11]. However, it has been held that a claim that was obviously untenable or manifestly groundless may invoke section 109(3)(a)(vi)[12].
7. Section 109(3)(c) of the VCAT Act sets out another factor, being whether a party has made a claim that has no tenable basis in fact or in law. The evidence and the wording of the review and re-hearing application both show that the Tenant was represented at the hearing of this proceeding on 26 March 2019. On the evidence of Mr Ting, which has been accepted in preference to the evidence of Ms Xu and Mr Youl, the Tenant's representative left the hearing of his own accord after the applications for recusal and reconstitution were refused by the presiding Member. Accordingly, the application for review and re-hearing had no tenable basis in fact or in law.
8. Having considered the submissions of the parties in relation to the costs application and having considered all of the matters set out in section 109(3) of the VCAT Act, I am satisfied that it is fair to order the Tenant pay costs to the Landlord in appearing at the hearing before me on 09 May 2019 on the basis that the application for review and re-hearing was conducted vexatiously and had no tenable basis in fact or in law.
9. Pursuant to section 111(a) of the VCAT Act The Tribunal may fix the amount of costs ordered to be paid by one party to another. I consider the costs claimed by Mr Ting on behalf of the Landlord for appearing on 09 May 2019 of $380.00 to be reasonable. I fix that as the amount of costs that the Tenant will be ordered to pay the Landlord.

[1] Rule 4.24(1) of the Victorian Civil and Administrative Tribunal Rules 2018 provide that an application pursuant to section 120 of the VCAT Act must be made within 14 days after the party becomes aware of the order.

[2] Section 120(4)(a)(i) of the VCAT Act.

[6] The appearance sheet is an internal document completed by the presiding member in hearings in the Residential Tenancies List of the Tribunal to record who appears for parties at hearings.

[7] Section 98(b) of the Victorian Civil and Administrative Tribunal Act 1998.

[8] Lillas & Loel Lawyers Pty Ltd v Celona [2014] VSCA 19 at [42], per Priest JA.

[9] For the Tenant to submit it was treated unfairly at the hearing on 26 March 2019 it must be inferred that the Tenant was present or represented at the hearing. If the Tenant was of the view it was treated unfairly then that fact may give it grounds to appeal the order made on 26 March 2019 but would not give it grounds to apply for a review pursuant to section 120 of the VCAT Act.

[10] See section 109(3)(a)(vi) of the VCAT Act.

[11] Clifford Hallam Healthcare Pty Ltd v Price [2010] VCAT 1117 at [35].

[12] Yarra CC v Kubic Pty Ltd [2013] VCAT 80 at [15].