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[2005] VSC 217
Supreme Court of Victoria
2005-06-27
Ashley, J
Original judgment source is linked above.
Appeal - decision of Victorian Civil and Administrative Tribunal - decision involving the formation of an opinion by the Tribunal and an exercise of discretion - reasons for decision - appeal on a question of law - whether decision impeachable.
1 Before the Court, pursuant to leave granted by a Master, is an appeal on a question of law under s. 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") against the decision of a member of the Tribunal established by that Act ("the Tribunal").
2 The decision, made on 25 November 2004, was reflected particularly in orders that:
"1. For the reasons given, I act under s. 75(1) of the Victorian Civil and Administrative Tribunal Act 1995 to summarily discuss that part of the proceeding which relates to the question of payment into the Domestic Builders Fund of $50,000 as being frivolous, vexatious, misconceived or lacking in substance or as being otherwise an abuse of process.
3 The notice of appeal states the following questions of law:
"1. Whether the Tribunal erred in finding that the part of the proceeding which related to the order was frivolous, vexatious, misconceived or lacking in substance or was otherwise an abuse of process.
The four grounds of appeal reflect those questions.
4 In order to understand the appeal it is necessary to recount more than a little of the circumstances which led up to the impugned orders.
5 The appellant plaintiff, which is a property developer and was relevantly the registered proprietor of land at Berwick, commenced a proceeding in the Tribunal's Domestic Building List by application filed 20 November 2002.
6 There were three respondents: Paradise Constructions Pty Ltd ("Paradise"), CWB Vaughan Consultants Pty Ltd ("Vaughan Consultants") and Bruno Strangio ("Strangio"). The last-mentioned was the beneficiary of the impugned orders, and is the defendant to this proceeding. The plaintiff alleged that Strangio was the sole director and shareholder, and was the secretary, of each of Paradise and Vaughan.
7 The plaintiff brought claims which rested on two different statutory foundations: the Domestic Building Contracts Act 1995 ("DBCA") and the Fair Trading Act 1999 ("FTA"). As against Paradise, the plaintiff alleged that by written contract dated 28 March 2002 such company had agreed to perform works in connection with the Berwick land. The works, of a value of about $500,000, were described as "the demolition of an existing building and site works related to the development of the land as a residential housing estate". In a number of ways, the plaintiff claimed, Paradise had breached the contract. The plaintiff had paid it $50,000 on the strength of a falsely inaccurate progress payment certificate provided by Vaughan Consultants. The plaintiff laid claim to the return of the $50,000; and also damages. Further against Paradise, the plaintiff in substance alleged that in tendering for the contract Paradise had made representations which breached FTA. It claimed damages under s. 159 of that Act.
8 The plaintiff also claimed damages under s. 159 of FTA against Strangio. It did so on the footing that as sole director of Paradise he was a person involved in the alleged contravention by Paradise "in that he prepared, wrote and signed the tender which formed the representations and was otherwise the sole person in control of the day to day management" of that company.[1]
9 As against Vaughan Consultants, the plaintiff alleged that -
10 The plaintiff further alleged that each of Paradise and Strangio was party to Vaughan Consultants' misconduct. So, it was alleged, each of them was liable to the plaintiff in respect of the consequences of such misconduct.
11 The points of claim were far from pleading perfection. Nonetheless, so far as Strangio is concerned, it is clear that the plaintiff alleged his involvement in the offending by each of Paradise and Vaughan Consultants against the provisions of the FTA. Such involvement, if their offending was established, would potentially give the plaintiff a remedy against Strangio.
12 Beyond that, the prayer for relief[2] suggests that the plaintiff also raised claims against Strangio founded on DBCA. Other than in the prayer for relief, however, I cannot see where any such claim was formulated.
13 Paradise and Strangio delivered points of defence and Paradise raised a counterclaim by document dated 6 February 2003. The defence and counter-claim were amended by document dated 3 October 2003.[3] So far as the material before me reveals the situation, no points of defence were ever delivered by Vaughan Consultants.
14 By their amended points of defence, Paradise and Strangio denied most aspects of the plaintiff's claim. They did, however, pertinently admit tendering for works involving the demolition of a building[4], admitted that Paradise entered into a contract with the plaintiff, admitted that Paradise commenced work on 3 April 2002, and admitted that works were still incomplete on 26 June 2002 (attributing that to the fault of the plaintiff).
15 By its counterclaim, Paradise alleged that it was entitled to be paid -
16 The first response by Paradise and Strangio to the plaintiff's claim was not, however, delivery of points of defence and counterclaim. Rather, the solicitor for those parties wrote to the Tribunal on 29 November 2002, making application that the plaintiff's claim be struck out for "total want of jurisdiction".
17 Also before Paradise and Strangio delivered their original points of defence and (Paradise's) counterclaim the plaintiff had made application to the Tribunal. By letter dated 5 December 2002 its solicitors adverted to the letter of 29 November 2002 and gave notice of two contrary applications. One of them was that -
"(Pursuant to sections 53(1) and/or 53(2)(b)(iii) and/or 53(2)(f) of the Domestic Building Contracts Act 1995 and/or sections 158(1) and/or 158(2)(d) of the Fair Trading Act 1999 and/or pursuant to the general law) that the Respondents forthwith refund the sum of $50,000 which they collectively mislead (sic) our client into paying the First Respondent by issuing false progress certificates under the building contract;"
18 On 23 January 2003 the Tribunal held a directions hearing. It made timetabling orders. It also ordered that -
"I set aside for separate hearing[7] the question whether orders should be made under the 1995 Act by which the disputed sum of $50,000 is to be paid into the Domestic Builders Fund to await otherwise the outcome of the proceedings except as may be ordered."
19 That order was the outcome, as the Tribunal recognised in argument on 25 November 2004, of it having indicated that it would not hear the plaintiff's application made by letter of 5 December 2002; but that it would hear an application for payment of money into the fund.[8] In other words, the application for payment into the fund was an application which the Tribunal proposed as an alternative to the application of which the plaintiff had given notice.
21 Pausing for a moment, s. 53(2)(bb) of DBCA says this:
"... the Tribunal may do one or more of the following -
(bb) order payment of a sum of money representing the amount of any money in dispute (including an amount on account of costs) to be paid into the Domestic Building Fund pending the resolution of the dispute."
At least ordinarily, and it may well be exclusively, such an order could only be made if the Tribunal had power to act under DBCA - that is, in respect of a "domestic building dispute", being a dispute as defined by s. 54 of the DBCA.
22 This also should be noticed about the course of events. Paradise and Strangio had challenged the Tribunal's jurisdiction - and, I was told, had commenced a Supreme Court proceeding, which was later abandoned. The challenge seems to have come to an abrupt halt in the Tribunal proceedings. On 23 January 2003 the Tribunal struck out "the applications concerning jurisdiction and concerning s. 77 filed on behalf of" Paradise and Strangio; and it made a consequential order under s. 75(2), DBCA, in favour of the plaintiff.[11]
23 It appears to me extremely likely that as at January 2003 the Tribunal understood itself to be properly seised of the plaintiff's application - inferentially by operation of DBCA; and perhaps FTA also. The Tribunal thus constituted not long thereafter held that work of the general type dealt with by the contract between the plaintiff and Paradise fell under DBCA.[12] The Tribunal's proposal that the plaintiff pursue an application under s. 53(2)(bb) was wholly compatible with such an understanding.
24 Notwithstanding the orders made on 23 January 2003, and notwithstanding the Tribunal's very likely understanding of the situation, Paradise apparently intended to challenge the Tribunal's jurisdiction under DBCA at the hearing on 27 February 2003. Its solicitor exhibited in this proceeding undated submissions which he deposed had been prepared in anticipation of that hearing.[13] The submissions asserted that whilst the circumstances the subject of the contract included the demolition of two houses, nonetheless
"these houses were not inhabited at the time the contract was entered nor were they intended for permanent habitation as [the plaintiff] had applied for and obtained a permit to demolish the houses."
26 The Pong affidavit traced a number of oddities to do with registration of companies associated with Strangio, and asserted a fear that the $50,000 would be lost if an order were not made.
27 The first Strangio affidavit made point by point refutation of the plaintiff's claims, explained the counterclaim, and gave reasons - including the plaintiff's alleged lack of bona fides - why an order should not be made under s. 53(2)(bb). In the course of that affidavit, I note, Strangio deposed that the contract works "included the demolition of two vacant houses", which were not inhabited at the time of tender, were uninhabitable and did not have services connected. Those houses were demolished, Strangio deposed, in December 2001. This was not necessarily before contract works began, despite the contract document being signed in March of the following year.[16]
28 The second Strangio affidavit expanded upon the plaintiff's alleged indebtedness to Paradise. The deponent asserted that such indebtedness exceeded the amount of the plaintiff's claim, for which reason the plaintiff already had, in effect, security for the $50,000 which was the amount of its s. 53(2)(bb) application.
29 The s. 53(2)(bb) application was not in fact dealt with on 27 February 2003. Paradise and Strangio failed to file and serve affidavits by 20 February 2003, as had been required by the Tribunal's order of 23 January 2003. On application by the plaintiff on 24 February the Tribunal ordered that Paradise and Strangio file and serve affidavits by 12 pm, 25 February - failing which, as I understand it, the claim and counterclaim were to be adjudged in the plaintiff's favour. Strangio's affidavit(s) were served by fax between 11.59 am and 12.09 pm on 25 February (but not including exhibits). Those affidavit(s) were not filed until 1 pm. At a hearing which commenced on 27 February the plaintiff opposed extension of time for filing and service of the affidavit(s). In the course of that hearing Strangio was cross-examined on his affidavit(s) for a day and a half; and even then cross-examination was incomplete. Also in the course of that hearing counsel for Paradise and Strangio unsuccessfully applied for the presiding member of the Tribunal to disqualify himself for bias.
30 As if the manoeuvring thus far detailed was not enough, what followed were months of unseemly manoeuvring by the parties. It included applications in this Court and to the Tribunal. They culminated, in substance, in the order of 24 February being set aside, with the result that the claim and counterclaim were no longer resolved in the plaintiff's favour. That position appears to have been reached by 15 September 2003.
31 On 19 September 2003 the Tribunal ordered that there be a compulsory conference between the parties on 14 November and that the plaintiff's s. 53(2)(bb) application be adjourned in the interim. The conference was held. The matter did not settle.
32 Within days of the failure of the compulsory conference there was another development. Paradise resolved to appoint an administrator. The plaintiff did not let this go unremarked. One step that it took was to commence a proceeding in this Court seeking orders, inter alia, that a liquidator be appointed. That application was heard in February 2004. On 20 March 2004 Mandie J ordered that Paradise be placed in liquidation.
33 In the period during which the liquidation proceeding was on foot skirmishing continued in the Tribunal and elsewhere. It included an application by the plaintiff that the solicitors hitherto acting for Paradise and Strangio be restrained from acting for Paradise under administration (it culminated in Paradise in fact instructing fresh solicitors), an application in this Court that Strangio be restrained from contacting junior counsel acting for the plaintiff, the registration in this Court of a costs order made in July 2003 in favour of (?) Paradise and Strangio; and, according to Strangio's solicitor[17], the unsolicited making on 27 February 2004 of an order by the Tribunal for the hearing of an application by the plaintiff for judgment against the respondents to the Tribunal proceeding.
34 On 7 May 2004 the Tribunal ordered, inter alia, that the s. 53(2)(bb) application be set down on a date to be fixed. A similar order was made on 7 July.
35 After 7 July 2004 the Tribunal successively fixed the s. 53(2)(bb) application for hearing on 3 September, 1 October and 4 October 2004.
36 Meanwhile, manoeuvrings continued. Each side had costs order(s) in its favour; and each side seems to have been determined not to be the first to actually pay anything. Whether that reflects the fact that neither side had anything to pay with, or whether costs orders were being used as weapons, or whether again this skirmishing had some other point, is mere conjecture.
37 On 8 September 2004 the Court of Appeal delivered its judgment in Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd.[18]. The substantive effect of that decision was to overturn the meaning given by the Tribunal and a judge in the Trial Division of this Court.[19] to the conception of "domestic building work" in DBCA. In substance, as I understand it, Winslow excluded from the purview of DBCA work done to prepare a subdivision for the sale of allotments and the eventual erection of houses.
38 It is entirely understandable, in view of the meaning which the learned Deputy President had placed upon the relevant provisions, and in light of the decision in the Trial Division, that up to 8 September 2004 he should have approached the plaintiff's proceeding on the footing that it was well-founded on DBCA - whatever might be said about the relevance of the FTA. But after 8 September 2004, excepting the possible significance of s. 5(1)(d) of DBCA, Winslow meant, in this case, that DBCA was not of jurisdictional relevance.
39 There was a lengthy hearing before the Tribunal on 4 October 2004. But in substance it resolved nothing. The only parties who were represented were the plaintiff and Strangio. The liquidator of Paradise, or his representative, was also said to be in attendance.
40 Counsel for Strangio submitted that Winslow meant that DBCA had no application to the proceeding before the Tribunal. He met a foreshadowed submission for the plaintiff that the Tribunal could make an order for payment into the Fund under ss. 108 or 109 of the Fair Trading Act by contending that neither provision authorised any such thing.
41 Counsel for the plaintiff then fastened upon the alleged demolition of premises by Paradise as a circumstance distinguishing the present case from Winslow. If once the Tribunal was seised of part of the proceeding under DBCA, he argued, then it was seised of the entirety under that Act. That led on to an issue whether the premises had been homes - this raising, inter alia, the question whether they had been "permanent habitations"; and to a submission by Strangio's counsel that in any event any demolition work had preceded the making of the contract relied upon by the plaintiff.
42 The hearing was conducted by counsel for the plaintiff and Strangio, despite the earnest attempts of the learned Deputy President, by way of constant interjections. The transcript[20] makes unedifying reading.
43 Having heard at length from counsel, the Tribunal said this:
"Let me say these are the three steps which I think are appropriate. If there was the demolition of a home, then there was domestic building work. In which case it seems to follow I have jurisdiction, at least to that extent, if not otherwise, bearing in mind Mount Holden. If I have got jurisdiction, the question then must be whether I ought to exercise it, to make the orders which are sought. That is a separate matter. As to whether there was domestic building work involved in the demolition of a home there is the first question, that is whether they are residential premises which were demolished.
There is the second question that if they were residential premises which were demolished, then whether they are premises that were intended, in any event, for permanent habitation. Now that is the way it goes down the line. As to any of those matters, I am not certain what the answer is, and it is not proper for me to proceed as having jurisdiction unless I am clear in my own mind, on the conventional test of the pleading, or the reverse of, that I do have jurisdiction. I am not going to exercise jurisdiction unless I am clear in my own mind that I have got it. Particularly bearing in mind Mount Holden. What I am proposing, and I ought to do is this. Allow you gentlemen to go away and come back and see if you can inform me better, at some later time in the day. I don't want to incur the parties any further expenses. The thing has been going for ages."[21]
44 Those observations led on to Strangio swearing an affidavit that day in which, on one view, he substantially qualified admissions he had previously made about the demolition of houses. Counsel for the plaintiff then sought time to meet the allegations raised.
"So where does it lead me? On the basis of this material it looks to me as though these aren't residential premises. I have got to say that. But then again the question has to be whether the other party now is entitled to ask for an opportunity to answer this material, having been now provided with it only just recently, as a result of my suggestion. I think it would be unfair if I wasn't to allow them at least the opportunity to answer it. The fact that Mr Pong has gone off to look at something in the light of what I have said is not unreasonable. But I have got to say, I mean, in light of this very strong evidentiary material, by way of affidavit, it may be hard to answer this material. But I think I'm probably duty bound, in order to proceed fairly, to allow the applicant the time to answer this new material. Otherwise they are surprised by new evidence."[22]
46 In the end the matter was adjourned so that the plaintiff could file affidavit material; and the s. 53(2)(bb) application was re-fixed for hearing on 25 November 2004 on an estimated duration of two days. The plaintiff was required to file and serve any further affidavit(s) by 1 November 2004.
47 The plaintiff filed no further affidavit(s). Instead, on 14 October 2004 it applied for the hearing on 25 November 2004 to be vacated and for its claim against Strangio only to be fixed for trial. Senior counsel for the plaintiff noted that his client did not intend to proceed against Paradise - which was in liquidation and which had no sufficient assets to justify pursuit of a claim against it. He said that:
"What remains, so far as the substantive application for ultimate orders are our Fair Trading Act claim against [Strangio]."[23]
48 Concerning the s. 53(2)(bb) application counsel submitted that in the circumstances it would be a unwarranted use of the Tribunal's resources to determine it. Nonetheless, he did not apply to withdraw the application, but submitted, in effect, that it should be adjourned for disposition at trial of the substantive proceeding.[24] Such a course would not prejudice either party. It was the more practical course.
49 Counsel's measured submissions were the subject of some apparently odd and argumentative remarks by the Tribunal.[25] Be that as may, the application was opposed by counsel for Strangio, who submitted that the s. 53(2)(bb) application should be struck out. Counsel also submitted, understandably, that his client did not want to come back to the Tribunal for two days and run up costs.
50 Despite the position of both counsel that they did not want the application to proceed on 25 November - although they disagreed about what should be done with it otherwise - the Tribunal apparently felt that it was stuck with that hearing date. The plaintiff would not withdraw the application; and there was no strike out application before it.[26] So, even though the Tribunal acknowledged that the plaintiff's position "probably makes practical common sense",[27] it confirmed the hearing date of 25 November; and ordered the plaintiff to pay the costs of and incidental to the day.
51 By letter dated 29 October 2004, that is, about two weeks after the hearing on 14 October and nearly four weeks before the hearing on 25 November, the plaintiff applied to abandon the s. 53(2)(bb) application. In substance the letter notified, I think, application for leave to withdraw. In the event that the Tribunal acceded to such an application it had power, I note, to make a costs order. [28]
52 Nothing in this dispute being simple, there followed a hearing on 25 November which must have occupied more than an hour. It culminated in the Tribunal making the orders now impugned; and it giving directions intended to culminate in a trial commencing on 25 July 2005 on an estimated duration of 20 days.
53 In the course of the hearing on 25 November, counsel for the plaintiff did not suggest otherwise than that the s. 53(2)(bb) application should be disposed of - save for costs - unfavourably to his client. In the latter connection he submitted, in effect, that the question whether the s. 53(2)(bb) application ought to have been pursued could not sensibly be determined before trial. He drew attention to the circumstance that it was the Tribunal which had formulated the s. 53(2)(bb) application.[29] It is crystal clear that at no time did he concede that the Tribunal was not seised of jurisdiction under DBCA. Indeed, he reiterated the contrary.[30] It could not be said that the plaintiff's decision, on practical grounds, to abandon the s. 53(2)(bb) application involved any such concession.
54 Counsel for Strangio submitted that the plaintiff should not be permitted to abandon the application. He asked the Tribunal to strike it out under s. 75(1) of the Act, that enlivening the broad discretion under s. 75(2) - a discretion extending beyond a simple order for costs. He reiterated what he had submitted on 4 October was the weakness of the plaintiff's case founded on the demolition of a home.[31] He made the point that the plaintiff had not filed an affidavit challenging his client's affidavit of 4 October concerning the status of what Paradise had demolished.[32] He further submitted that the plaintiff had insisted on the two-day hearing of the s. 53(2)(bb) application and had then unilaterally sought to abandon that application.[33]
55 I have referred a number of times to s. 75(1) and (2) of the VCAT Act. It is convenient to set them out before noting what the Tribunal said in that connection. Thus:
"(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding."
56 Having heard counsel's submissions, the Tribunal gave reasons for orders that it thereafter made under s. 75(1) and (2). It said this:
"These are my reasons for ruling as I do. I have before me a statement made in a letter, dated 29 October 2004, by which the solicitors for the applicant indicate an intention on the part of their client now to abandon the hearing of the question of whether the third respondent, that is Mr Strangio, should pay the $50,000 into the Domestic Building Fund. This is a matter that has occupied my time, and that of legal representatives for quite a period.
I have power under s. 74 of the Act to allow a withdrawal of an application. It is contended that this was no(t) an application. In those circumstances, if that be right, then no occasion arises for s. 74 to operate. If, however, it is not right and it is an application it does not follow that I am bound to act under s. 74.
It seems to me to be proper to take up the invitation to act under s. 75(1) to provide for the summary dismissal or striking out of a part a proceeding. I consider that the matter of the payment in the Domestic Building Fund is part of a proceeding, if it is not an application by itself, and I consider within the terminology used in the provision that that part of the proceeding is frivolous, vexatious, misconceived, or lacking in substance and was otherwise an abuse of process.
In that regard, the following matters, I think, are important for me to take into account. Namely, the matters mentioned by counsel for Mr Strangio in the course of his address to me. Secondly, I rely upon the affidavit material previously before me. Thirdly, the circumstance that there appears to be no answering affidavit material which might change the complexion of the previously sworn material. I also rely upon the declared intention to abandon the issue, the matter. Seldom in my experience are good points abandoned. I make that as an observation. Further, I take into account the evident confusion on 14 October 2004 by senior counsel, as to whether this matter is one which should be withdrawn or not. That was an unimpressive exercise on the part of the client by its counsel. For those reasons, I think it is proper, in my opinion, to form the view that the terminology - that the tests provided by the terminology are met, and I think it is appropriate that I should proceed to summarily dismiss or strike out, as invited to do so.
That then raises the question of what do I do about the question of costs. The question of costs then arises, in my view, not under s. 109 but under s. 75(2), which provides that if I make an order sub-s. 1 I may order the applicants pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience or embarrassment resulting from the proceeding. I think it is proper that I should act under that provision to order the costs which have been sought. It is not a question of whether I order indemnity costs or party party costs, or anything like that. The provision says an amount to compensate. It is a different provision. It is, in effect, a compensatory provision against losses and costs, and that is what I propose to do."[34]
57 The Tribunal, as will now be evident, had conducted many hearings in this matter by 25 November 2004. Its accumulated knowledge of the matter before it, quite apart from its own expertise and experience in domestic building disputes, must be plainly acknowledged. Further again, what is being attacked is first the formation of an opinion by the Tribunal, and second the exercise by it of a discretion under s. 75(2) of the Act. In each of those connections one should be very reluctant indeed to conclude that a decision was so unreasonable as to be untenable. Still further, whilst the Tribunal was obliged to give reasons for its decision, it is to be remembered that they are the reasons of an administrative tribunal, not a court. It would be wrong to subject them to examination word by word as if with an intention of discerning errors.
58 I heard and have read substantial submissions advanced for the plaintiff and Strangio in connection with this appeal. Counsel referred to some but not all aspects of the chronology which I have outlined; and to a number of authorities. It is not necessary, however, to explore each submission and each authority in order to resolve this appeal.
59 In my opinion, notwithstanding the important considerations to which I referred a few moments ago - they tending in favour of supporting a decision such as that which is now attacked - the plaintiff's appeal must succeed.
60 The following considerations are in my opinion pertinent:
61 First, it is true that the plaintiff and Strangio adopted the common position that the s. 53(2)(bb) application should be disposed of, without adjudication, unfavourably to the plaintiff. It might then be said, viewed superficially, that the plaintiff could not complain that its application was disposed of in such a way. But in fact, of course, the plaintiff and Strangio had very different positions concerning the intrinsic merits of the application; and that was reflected in the position which each took as to costs. The plaintiff, plainly, wished to argue that jurisdiction to make a s. 53(2)(bb) order would be disclosed at trial - this bearing upon any order for costs which might be made under s. 74(2)(b) of the VCAT Act. Strangio, on the other hand, sought the benefits which were potentially available under s. 75(2), in the event that the Tribunal formed a pertinent opinion under s. 75(1).
62 Second, it is important to apprehend that the impugned orders attached to an application which the Tribunal had itself formulated at a time when it very probably considered it had well-founded jurisdiction under DBCA, such that did not depend[35] upon the issue of demolition of homes. Whatever might be said of the situation after 8 September 2004, orders 1-3 made on 25 November 2004 necessarily implied the Tribunal's opinion that the s. 53(2)(bb) application had been such as met a s. 75(1) description from the time of its inception in January 2003. Nothing which the Tribunal said in its reasons showed that to be the case. Indeed, its reasons focussed upon what had happened from and after 4 October 2004 - that is, the period after the Court of Appeal judgment in Winslow.
63 It follows from what I have just said that the Tribunal's reasons do not support an opinion that the s. 53(2)(bb) application met a s. 75(1) description from the outset. If the Tribunal nonetheless formed such an opinion, then the reasons are inadequate. If the Tribunal did not consider the question whether the application met such a description before and after September 2004, then it failed to consider a matter which, in my opinion, it was bound to consider in the circumstances of the particular case. If the Tribunal, on the other hand, considered that question and formed the opinion that the application met such a description from the outset, I consider that such an opinion was unreasonable in the relevant sense.
64 Third, because paragraph 1 of the Tribunal's orders operated in respect of an application which had been on foot since early January 2003, the s. 75(2) order operated indiscriminately in connection with both a period when its jurisdiction under DBCA was not seriously in issue and a period when that jurisdiction was under substantial challenge. The Tribunal's reasons reveal nothing to indicate that it considered such an impact. If it did not do so, then in my opinion it failed to consider a matter which in my opinion was necessarily relevant. But if the Tribunal in fact considered the matter and for some reason discarded it as bearing upon the application of s. 75(2), then its reasons were inadequate.
65 Fourth, it is a matter associated with the second and third matters which I have just mentioned, on an assumption that the Tribunal had jurisdiction under DBCA, the question whether an order should be made under s. 53(2)(bb) was in short compass. The Tribunal had ordered in January 2003 that the application be heard on 27 February 2003. Paradise was then not in liquidation. Nothing in the circumstances which I have summarised suggests that the plaintiff's application, then assessed, should be characterised as fitting any of the circumstances described in s. 75(1)(a),(b). Save only for the liquidation of Paradise, that remained the situation until September 2004. The Panel did not in its reasons of 25 November 2004 suggest the contrary. The fact that the whole proceeding may be said to have gone off the rails because of manoeuvrings by the parties is beside the point in the present connection.
66 Fifth, though it is but a consequence of the second and third matters to which I have drawn attention, I was told from the Bar table that Strangio's solicitors have assessed the pertinent legal costs - that is, not including compensation for "inconvenience and embarrassment" - at over $100,000. Evidently that must relate to the whole period that the application was on foot, most of it preceding September 2004. That emphasises the practical importance of orders which had the effect of treating the plaintiff's s. 53(2)(bb) application as having been such as met a s. 75(1) description from the outset.
67 Sixth, in my view the Tribunal's reasons in connection with the opinion which it formed concerning s. 75(1) were at least inadequate. A Tribunal's reasons should be sufficient to reveal to the losing party why it lost, and to disclose the reasoning process. The second of those matters bears upon the question whether jurisdiction was exercised in accordance with the statutory warrant.
68 Section 75(1)(a) and (b) set up alternative circumstances grounding an order for summary dismissal or for the striking out of all or part of a proceeding. Indeed, within paragraph (a) itself, a number of different circumstances are contemplated. Yet what the Tribunal, in substance, did was simply to repeat the words of paragraph (a) and then repeat the words of paragraph (b), linking them by a conjunctive. It is impossible to know, by looking at the Panel's reasons, which amongst the various alternatives it was of opinion was the case. The Tribunal's opinion concerning s. 75(1)(a) and (b) was an essential part of its reasons. If its reasons do not in that respect reveal error - in fact it seems to me that they do - then at least, as I said a few moments ago, its reasons were relevantly inadequate. The difficulties are compounded, I add, because paragraph 1 of the Tribunal's orders in substance expresses the language of paragraphs (a) and (b) separated by a disjunctive.
69 Seventh, because the Tribunal wrongly characterised the plaintiff's application, viewed globally, as meriting a s. 75(1) description, it evidently failed to address a number of questions of potential importance: would it be open to the Tribunal, if it concluded that an application merited a s. 75(1) description not at outset but at some stage in its progress, to make a s. 75(1) order? What would be the situation if the Tribunal concluded that an application brought against a number of respondents merited a s. 75(1) description against one or more of them but not others? In either of the situations just mentioned could a s. 75(1) order be made? In such a case would the effective remedy lie in giving the successful party a part remedy under s. 75(2)? More pointedly, even if the Tribunal had jurisdiction under DBCA in respect of Paradise and Vaughan, did it have any such jurisdiction in respect of Strangio? If it did not have jurisdiction under DBCA in respect of Strangio, but did have jurisdiction under FTA, could it possibly have made an order that he provide security by paying the disputed $50,000 into the Fund, a fund constituted under DBCA?
70 Eighth, the five matters which the Tribunal said were important for it to take into account were at least inadequately stated; and probably reveal error. Thus:
• The matters relied upon by Strangio's counsel essentially addressed the situation after September 2004. Further, counsel's submission that the plaintiff had insisted on the 2 day hearing fixed upon something which senior counsel for the plaintiff had said on 14 October 2004 would be the undesired consequence of the s. 53(2)(bb) application not being adjourned to the trial date.
• The Tribunal's reference to "the affidavit material before" it, and to there being "no answering affidavit material" was presumably a reference to Strangio's affidavit sworn 4 October 2004; and to the plaintiff's failure to file material in response. In circumstances where on 14 October 2004 plaintiff's counsel had made clear to the Tribunal the inutility of discretely litigating the s. 53(2)(bb) application, and where the plaintiff had thereafter abandoned the same without - it is crystal clear - abandoning reliance in the proceeding generally upon the applicability of DBCA, it was at least problematic for the Tribunal to seize on the plaintiff's failure to file material as showing the s. 75(1) character of the application. Further, at most the failure to file material bore on the situation after 8 September 2004.
• The Tribunal's observation that good points are seldom abandoned should certainly be accepted as a general proposition. If it was pertinent in the particular circumstances, it had no obvious application to the period before September 2004.
• The Tribunal's reference to the "evident confusion" of senior counsel for the plaintiff on 14 October as to whether the application should be withdrawn or not, and its remark that this "was an unimpressive exercise on the part of the client by its counsel", were in my opinion quite misconceived, and wholly unreasonable. The transcript of the proceedings on 14 October[36] shows that counsel made a simple, straightforward and uncomplicated submission: a two-day s. 53(2)(bb) hearing would be an unwarranted waste of time, the sensible course would be to adjourn the application to the time of trial, at which time it would likely fall away and costs could be debated. This was evidently sensible because the plaintiff at trial would either pursue reliance on DBCA against Strangio, in which case evidence about the demolition work would doubtless be adduced and the Tribunal would in its reasons doubtless address that evidence; or else the plaintiff would not pursue such reliance. If it took the former course and the Tribunal was persuaded that it did have jurisdiction under DBCA, specifically in respect of Strangio, that would, or well might, have some implications in respect of costs of the s. 53(2)(bb) application, not withstanding that the application had not been discretely pursued. If the issue was not pursued at trial, or if it was pursued and the Tribunal reached a conclusion adverse to the plaintiff, again that would likely impact upon whether some and what costs order should be made in respect of s. 53(2)(bb) application. The Tribunal several times noted on 14 October the practicality of the course suggested by counsel.[37] For reasons which it thought good it rejected that course. Be that as may, the Tribunal evidently had no difficulty understanding counsel's simple submission on 14 October. The criticisms it made on 25 November are perplexing.
71 Ninth, counsel for Strangio submitted that the impugned orders were interlocutory; and whether that was so or not, the appeal should not be countenanced because to permit it would fragment the proceeding - fragmentation having been judicially disapproved by myself and others. In the present case I have not considered it wrong to consider and pass upon the appeal. The orders made on 25 November 2004 addressed a discrete issue; and had serious monetary implications.
72 Tenth, counsel for Strangio submitted that the Tribunal had been unimpressed by the fact that the plaintiff's position had shifted between 4 and 14 October 2004. No doubt its position did shift. That does not explain, in my view, why the Tribunal did not act upon the submission made by plaintiff's counsel on the latter date. But be that as may, the circumstance that the Tribunal was thus unimpressed says nothing about the merits of the s.53(2)(bb) application considered before 8 September 2004.
73 Eleventh, counsel for Strangio submitted, as I understood it, that relief should be refused because the complaint about inadequacy of reasons was hollow. That was so because the plaintiff could have sought written reasons: see s. 117(2) of the VCAT Act.
74 The plaintiff was not obliged to seek written reasons. There is no reason to believe that the oral reasons did not set out the Tribunal's reasoning process. The reasons, though delivered orally, were recorded and later transcribed. I cannot think that s.117(2) is intended to provide a vehicle for the Tribunal giving reasons differing in substance from those orally given.
75 Twelfth, as was rightly conceded by Strangio's counsel, paragraph 1 of the orders made on 25 November 2004 did not resolve the jurisdictional question.
76 In my opinion orders 1-3 made by the Tribunal on 25 November 2004 should be set aside. The matter should be remitted to the Tribunal, similarly constituted as it was on 25 November, to consider afresh the possible operation of ss. 74 and 75 of the Act in respect of the plaintiff's s. 53(2)(bb) application. The parties should not be foreclosed from making further submissions. What I have said in these reasons suggests that issues which counsel did not discretely address on 25 November may need to be addressed; and may be important to whatever orders are finally made.
Pong Property Development Pty Ltd
Strangio [2005] VSC 217