PRACTICE AND PROCEDURE - Application to join party to proceeding, and applications regarding witness summonses

Jimmy Poh Hock Seng, Penny Soai Ly Seng and Andrew Chun Hsien Seng as trustees for the JPA Seng Super Fund

Link and Connect Pty Ltd v Jimmy Poh Hock Seng (Building and Property) (Corrected) [2022] VCAT 148

1. The reconstitution application, seeking the reconstitution of the Tribunal that on 13 April 2021 commenced hearing the final hearing of the initiating application (Member Edquist), is adjourned until after the Supreme Court appeal from the orders made by Member Edquist on 10 September 2021 has been determined.
2. The reconstitution application, seeking the reconstitution of the Tribunal such that Deputy President Wilson not hear the proceeding further, is dismissed.
3. The application for an interlocutory injunction filed on 7 January 2022 is dismissed.
4. The application to join ASL as second respondent filed on 7 January 2022 is dismissed.
5. The application concerning summonses filed on 7 January 2022 is dismissed.
6. The proceeding is to be listed for a directions hearing on a date to be fixed after the determination of the Supreme Court appeal presently listed for 30 March 2022 (Supreme Court Case No. S ECI 2021 04063).
7. Costs of the dismissed applications, and of the hearing on 28 and 31 January 2021, are reserved.

1. The following applications brought by Link and Connect Pty Ltd (Link) were before the Tribunal at the hearing on 28 and 31 January 2022:

1. An interlocutory injunction application filed on 7 January 2022; 2. A reconstitution application filed on 21 January 2022;

1. An application to join ASL as a respondent to the proceeding; and

1. Applications relating to various summonses being 'allowed' or 'processed', (that application is referred to in Link's 'additional submissions' filed 7 January 2021, which Link incorporated by reference into the application filed 7 January 2022).
2. This hearing took place all day Friday 28 January 2022, and continued on the afternoon of Monday 31 January 2022. There were many affidavits and written submissions before the Tribunal, including some filed between the Friday and Monday hearing. Oral submissions were made both on Friday and Monday. Mr Caspersz, a director of Link, appeared for it. Mr Young appeared as solicitor for the respondent.
3. I considered all of the material referred to before me, as well as the oral submissions made.
4. I delivered oral reasons at the end of the hearing, dismissing the applications. These written reasons incorporate those oral reasons.
5. These written reasons also deal with a subsequent attempt by Link to file yet another application, the day after the hearing. I directed Registry not to accept that application for filing, for the reasons set out here.

(1) At any time before the conclusion of the hearing of a proceeding -

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or

(b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

1. The Tribunal constituted by Member Edquist commenced hearing the final hearing of the initiating application in this matter on 13 April 2021. That final hearing is presently adjourned part heard to a date to be fixed.
2. On 10 September 2021 the Tribunal constituted by Member Edquist made orders dismissing various applications brought by Link, including applications for injunctive relief. Link has appealed those orders to the Supreme Court on various bases, including allegations that Member Edquist demonstrated bias against Link. That appeal (Supreme Court Case No. S ECI 2021 04063) is presently listed to be heard on 30 March 2022. (At the time of the hearing it was listed for 9 March. The Supreme Court has since made an order moving the date).
3. On 3 December 2021, 5 January 2022 and 7 January 2022 the Tribunal constituted by Deputy President Wilson made orders in this proceeding.
4. At the hearing on 28 January 2022, Mr Caspersz (for the applicant) confirmed that the applicant seeks orders for reconstitution of the Tribunal such that neither Member Edquist nor Deputy President Wilson form part of the Tribunal hearing the ongoing proceeding.
5. I will adjourn the reconstitution application so far as it concerns Member Edquist.
6. A number of the matters that are raised by Link as reasons why Member Edquist should not form part of the Tribunal that deals with this proceeding are also raised in the appeal that has been brought against a decision of his to the Supreme Court which is listed to be heard in March 2022. This application will need to wait until the decision has come from the Supreme Court in that regard.
7. The reason the applicant wants reconstitution of the Tribunal such that Deputy President Wilson no longer hear any part of this proceeding, is that he says Deputy President Wilson is biased.
8. I am not satisfied that any of the matters that have been raised by Link constitute either bias or apprehended bias within the tests laid out in the authorities. The complaints about Deputy President Wilson fall into three separately distinct categories. None of these amount to bias or apprehended bias.
9. First, Link disagrees with a number of the decisions that have been made by Deputy President Wilson. Then it disagrees with various case management rulings and decisions that he has made, such as (for example) what submission should be filed or what time should be given for different things to be done. Link also complains that DP Wilson has refused to give written reasons for some orders.
10. The rule against bias is that justice should both be done and be seen to be done: Ebner v The Official Trustee and Bankruptcy [2000] HCA 63; [2000] 205 CLR 337 at 6 (Ebner).
11. Actual bias is rarely alleged and difficult to prove. Allegations must be distinctly made and clearly proved. The rule requires that the decision maker is not actually biased in reaching the determination, and there is no basis for a reasonable perception of bias on the part of an outside observer.
12. The test, as stated in Ebner, is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question which the decision maker is to decide.
13. I am not satisfied that that has been established.
14. It is important to note that it is a high bar to establish bias and here, that bar has not been met. None of the matters that have been raised establish any bias or apprehended bias, whether considered singularly or cumulatively. It is part of the Tribunal's role to make decisions and to case manage matters to get them to trial and then through the course of the trial. Requiring parties to make their case clear, and in appropriate cases limiting the number of pages they may submit and so forth in relation to submissions is all part of case management.
15. Written reasons in interlocutory matters are generally not required at VCAT. Certainly failing to provide them does not establish bias.
16. I will dismiss the application for reconstitution so far as it concerns Deputy President Wilson.

1. The interlocutory injunction Link seeks is sought in circumstances where the landlord has already taken possession of the premises that is the subject of the disputes here. Link argues that this should not have occurred, and says that the landlord should now be stopped, effectively, from acting in any way on that re-entry.
2. The onus on the applicant for an injunction is to demonstrate there is an issue to be tried as to its entitlement to relief at trial, that there is a prima facie case as to the entitlement to relief, and that there is sufficient likelihood of success to justify preservation of the status quo pending trial. It must also show damages are not an adequate remedy.
3. In order to dismiss the injunction application, which I will do, I do not need to make a finding in relation to whether there is a prima facie case shown, because I am not satisfied that two necessary elements for an injunction have been established.
4. First of all, Link needed to establish that if the injunction is not granted it is likely to suffer an injury for which damages will not be an adequate remedy. This has not been established. Damages are an adequate remedy here.
5. If the landlord has breached its obligations in the way that it has re-entered the property, or anything else it has done, then Link can pursue its claim for damages in relation to that. In its Points of Claim dated 15 February 2021, at 'Option 2', Link in fact asks for damages, including the costs of moving out and re-establishing business elsewhere.
6. The balance of convenience also does not favour Link having the injunction. Link has not been conducting its business from the relevant premises since September 2020 (as was conceded by Mr Caspersz at the hearing). It has not paid any rent for at least the months of August 2021 to date.
7. On the other hand, the respondent presently has someone ready to move in and to pay six months' rent in advance, and the landlord is concerned not to lose the benefit of that. That was stated by Mr Young at the hearing on 28 January (even without that statement, I would not have considered the balance of convenience favoured granting the injunction in circumstances where Link has not conducted its business from the premises for so long).
8. The application for an interlocutory injunction is dismissed.

1. I now turn to Link's application to join Australian Sales and Leasing Pty Ltd as a second respondent.
2. This application is not specifically stated in any application Link has filed (as it should be). It is referred to in Link's 'additional submissions' filed 7 January 2022, which were incorporated by reference by Link into its application filed 7 January 2022.
3. I refer below to the appropriate way to make an application, but deal in any event with the application.
4. Section 60 states:

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(2) The Tribunal may make an order under subsection (1) on its own initiative or on the application of any person.

(3) On the application of a person who is entitled under section 73(4) to be joined as a party the Tribunal must order that the person be joined as a party.

1. None of the reasons given by Link for joinder establish that ASL should be joined. The reasons given include the fact that ASL signed at least one document, a disclosure statement on 9 July 2020, for the landlord. The reasons also include that the respondents are using the same solicitors as ASL, and that Mr Caspersz believes that ASL is paying the legal fees of the respondents (that latter assertion is contested by Mr Young, who states that it is in fact the respondents who are paying his fees, but that he has also done work for ASL).
2. None of those reasons amount to a cause of action that I can presently see that the applicant can bring against ASL. I am not satisfied that any of the bases for joinder under s60 are made out.
3. I will dismiss that application.

1. I now turn to the request for orders regarding processing other witness summonses and obtaining documents. It is hard to understand what Link wants to do about this. No separate application specifying this or relying on the relevant parts of the VCAT Act has been filed. Again, it is something that is mentioned in submissions. To the extent that Mr Caspersz referred to it at the hearing, it seems to be caught up with the claims against ASL and it is not apparent how what is sought relate to the present proceeding (as opposed to some sort of claim relating to people who are not parties to this proceeding).
2. I will dismiss that application.

1. The directions hearing is adjourned to a date after the Supreme Court appeal mentioned above has been determined.

1. The respondents sought costs to be reserved. They say they may make an application that it is entitled to costs, later. Link says the respondents are not entitled to have costs.
2. There is no downside to reserving them. The argument about whether the respondents are entitled to them can be made later, and I make that order.

New application the day after the hearing - wanting urgent directions hearing

1. As indicated above, I gave oral reasons at the conclusion of the hearing on 31 January 2022 and said I would dismiss the applications that were before me.
2. The following day (1 February), the first of a series of emails from Mr. Caspersz, the director for the Link, was sent to VCAT Registry at 4:22pm. By it, Link sought to file an application for an urgent directions hearing and seeking various other orders.
3. Within about 20 minutes, Mr Caspersz sent another email, attaching many other documents including submissions, and seeking to update the application already sent. I will refer to this second application as the 1 February application. It was not accompanied by a filing fee.
4. The application and material accompanying it were eventually referred to me for consideration as to whether it should be accepted for filing. The application was not accompanied by a filing fee.
5. I have reviewed the application for an urgent directions hearing and all the material filed with it. One of those documents is headed 'submissions' but in fact seeks a variety of other orders not mentioned in the application. The other documents appear to be evidence of some nature Link wants to rely on, but are not in an affidavit. Altogether, the material is confusing and hard to follow.
6. I have directed Registry not to accept the 1 February application for filing, or any of the material filed with it, for the following reasons.
7. It appears that by the 1 February application, Link seeks to:
   1. Reagitate matters already sought in applications that have been dismissed by the Tribunal. For example, Link seeks to reagitate aspects of the interlocutory injunction application mentioned above, for various reasons. These include that Link states that it 'validly disagrees' with the dismissal of its interlocutory and reconstitution applications. Orders also seem to be sought (according to the 'submissions document) regarding witness summonses and documents, amongst other things. This matter was just considered in the hearing before me (see paragraph 38 of these reasons). Whether Link agrees or not with the decision, the decision has been made, and the applications dismissed. That is the end of those applications (unless there is a successful appeal to the Supreme Court of any of the orders dismissing them).
   2. Obtain orders for which there is no apparent legal basis. For example, the applicant seeks a 'determination' (at paragraph 3 of the 1 February 2022 application) regarding the basis on which it must return the subject property to the landlord. If the property is not returned in the appropriate condition, it will sound in damages. These can be dealt with at the final hearing if a claim is brought by the landlords.
8. The material filed is confusing.
9. There is no urgency established about any of the matters Link has raised.

Future applications, submissions and affidavits in this proceeding.

1. Link has made many interlocutory applications and filed hundreds of pages of documents in the course of this proceeding to date. The material has been sent as multiple attachments to emails, sometimes referencing other emails and documents in a confusing way.
2. The more unnecessary material that is filed, and the harder it is to understand, the more time and resources are wasted by other parties, and the Tribunal, in seeking to understand what is sought, and why. And the longer the case will take before it is finalised.
3. Any further applications should state on their face what relief is sought and under what section of the VCAT Act. They must be accompanied by the appropriate filing fee.
4. Any submissions accompanying an application should contain the reasons the relief sought in the application is sought, not themselves seek new orders that are not raised in the application.
5. If there is evidence relied on to support the application, that must be contained in an affidavit and its exhibits.