Plaintiff v Defendant

1 This is an appeal from orders made by the Magistrates' Court at Dandenong on 10 September 2013. The background to the dispute, which has also been the subject of a proceeding at the Victorian Civil and Administrative Tribunal ('VCAT') is as follows: the appellant, Mr Waddington, lived for a period of approximately 14 months in 2009 and 2010 at 5153 John Street, Oakleigh ('premises'). He had an informal arrangement with either or both of Mr David Kha and Mr Nathan Massie, who leased the premises under a commercial lease. It seems that the premises were intended to be used for commercial purposes, being zoned as such, but a number of people also lived at the premises, and paid a rental of approximately $130 per week each, which also included a contribution to utility costs. The nature of the arrangements at the premises is a critical issue in the dispute between the parties.

2 Mr Waddington departed the premises suddenly, and possibly quite unexpectedly, in November 2010, when he was incarcerated. He left all of his possessions in his room at the premises. The events which followed are a little unclear. However, on 19 January 2011, Mr Kha wrote to Mr Waddington's mother in the following terms:

Hi Mrs. Waddington

I'm writing in regards to Nigel's Rent and the next Payment for the Period of 21st Dec to the 21st Jan.

My Calculation for the month is:

$130pw x 52 weeks = $6760 divide by 12 months (to work out the monthly payments) = $563.33

We had 4 people pack up his room and it looks immaculate! We basically got plastic containers and packaged up as much books as we could and also put some of his books and clothes in suitcases.

Mind you, he did have a lot of paper, in the form of traffic fines, train tickets, documents and more books!

For some other items, we have placed them into garbage bags to keep the room tidy and also to prevent dust settling on to them. I regret to inform you that we had to throw away a 'bong' used to smoke marijuana. It was in use and unfortunately, being a shared house, should the council find this on the premise, it would not look very favourably (or look safe) as a respectable premise. He did have some money lying around and we also placed them into the plastic bags for safe keeping. There is now currently a lock on his door, just in case anyone happens to be wandering by. His room is a well lit room, so its not hard for someone to see what he has.

The room was very dusty and didn't look like it had been swept or wiped down for a very long time. In fact, I would say that on a few occasions, I was overcome by the dust and had to stop cleaning!

Anyway, I hope he is doing well. Is there any word from Nigel? Last I heard, he was concerned about the money in his room and would like to have it sent to his bank account. What I have found were coins, but if he had more money hidden away, we didn't come across and would have been packed into one of the bags. I think we had 7 plastic tubs for his books, 7-8 Garbage bags of books, papers and other documents, various hardware including computer and TV, and more bags and boxes of his DVD & Video collection.

Would you consider having his properties moved to storage in the time being? It might be cheaper to do so. We would still have his room available when he returns. You definately (sic) would need a van to move all his belongings. I've arranged for his room to be cleaned on a monthly basis - wipe down the table/desk and vacuumed.

Have a great New Year.

Kindest Regards

David Kha

3 Not long after this email was sent, the lease came to an end. Mr Kha was by then living and working in Sydney. Somehow Mr Waddington found out about this, and arranged for some friends to attend the premises and collect his belongings. However, when they arrived at the premises on 26 February 2011, they found Mr Waddington's belongings, including his bed and mattress, outside the premises, exposed to the elements, and either damaged or spoiled.

4 Mr Waddington, with the assistance of friends, brought a proceeding against Mr Kha in VCAT seeking damages of $15,240 as compensation for the value of his goods. The claim was originally brought under the Residential Tenancies Act 1997 (Vic) ('RTA'), but as the quantum of the claim exceeded VCAT's jurisdiction under the RTA, an equivalent claim was also brought under the Fair Trading Act 1999 (Vic).

5 Mr Waddington contended that the premises fell within the definition of a rooming house within the meaning of the RTA. The RTA defines a 'rooming house' as:

a building in which there is one or more rooms available for occupancy upon payment of rent -

(a) in which the total number of people who may occupy those rooms is not less than 4. ...

Pursuant to s 3 of the RTA, a lessee of a premises falls within the definition of a 'rooming house owner'.

6 The RTA imposes certain obligations upon rooming house owners. Section 123 of the RTA provides that:

A rooming house owner must take all reasonable steps to ensure security for the property of a resident in his or her own room.

7 There were four hearings at VCAT, all during the period of Mr Waddington's incarceration. At the last of these hearings, on 21 October 2011 ('final VCAT hearing') Mr Waddington attended by telephone. Neither Mr Kha or any representative of his was present, although it appears he was given the opportunity to attend by telephone. At first there was a discussion between the Tribunal Member and two of Mr Waddington's representatives, who were physically present, about procedural matters, such as whether the proceeding should be transferred to the Magistrates' Court, and whether Mr Waddington could make a claim for costs.[1]

8 Mr Waddington gave evidence (on oath) by telephone. Prior to him giving evidence the Tribunal Member explained what had happened in the proceeding, and that at a previous hearing a representative of Mr Kha had challenged Mr Waddington's entitlement to make a claim under the RTA, as the arrangements at the premises were a share house situation, not a rooming house as claimed by Mr Waddington.

9 Mr Waddington gave evidence that the premises had once been a factory and office. There were seven rooms available for rent, and the kitchen and bathroom facilities were shared. At the time Mr Waddington moved in, there were six people living at the premises. Mr Kha was not living there.

10 Mr Waddington gave evidence that he found out about the premises by looking for shared accommodation on realestate.com.au, and contacted 'Nathan'. Nathan told him to visit the premises and meet up with 'David' who would fill him in on the details. Neither Nathan or Mr Kha lived at the premises, but Mr Kha appeared to be the one 'running the show', while Nathan seemed to have only minimal involvement. One of the upstairs residents collected the rent, and the receipts all had Mr Kha's name and ABN number. All of his receipts had been lost or destroyed. Any repairs to the premises were organised through Mr Kha.

11 Mr Waddington initially made no arrangements following his incarceration regarding his room or his belongings. In early December 2010, he made contact with his parents, who told him that Mr Kha had been in touch with them, and that they had paid Mr Kha about $1,800 on account of rent arrears.

12 Mr Waddington was uncertain whether his parents paid any more rent after receiving the email reproduced at paragraph 2 above, but he did not believe they did so. Later (in February 2011, he believed), he heard that all but one of the residents had been 'turfed out' and that the premises were changing hands. He contacted a friend and asked him to remove his things as soon as possible. His friends attended at the premises and found seven or eight garbage bags in a laneway behind the premises, along with a suitcase and bedding.

13 The above summary of Mr Waddington's evidence at the final VCAT hearing has been included because it represents the most coherent narrative of Mr Waddington's version of events available. After Mr Waddington gave evidence, the Tribunal Member stated that it appeared to her that the premises were being run as a rooming house, and that Mr Kha was behaving as a rooming house manager, and thus the provisions of the RTA governing rooming houses apply. However, the Tribunal Member commented that Mr Waddington needed to establish the value of the goods, on a replacement value basis, not a 'new for old' basis, and must also establish that the value of the goods exceeded the cost to the rooming house owner of removal, sale and storage of the goods. The Tribunal Member was presumably referring to s 384 of the RTA, which provides that where a rooming house resident has vacated a room and left behind goods, the owner of the premises may remove and destroy or dispose of the goods if the total estimated cost of the removal, storage and sale of the goods is greater than the total monetary value of the goods. If s 384 does not apply, then under s 387 of the RTA a rooming house owner must take reasonable care of any goods left behind, and take reasonable steps to notify the former resident as to when and from where the goods may be collected.

14 Following this discussion, it seems that Mr Waddington was concerned about the nature of the relief he would be able to recover at the VCAT hearing, and had concerns about his ability to prove his claim given his incarceration at the time. He had a discussion with the Tribunal Member about proceeding with his claim in the Magistrates' Court, and received an explanation from the Tribunal Member that while he could do so, he could not pursue the same claim in two different jurisdictions. Mr Waddington then withdrew his claim.

15 Mr Waddington issued his claim in the Magistrates' Court at Dandenong on 11 January 2012. The claim was formulated as follows:

1. The Defendant did on or about the 14th of January 2011 or certainly between the 1st and 31st of January 2011, at the address of 51-53 John St. Oakleigh, Convert the Plaintiff's goods to his own use and purpose.
2. At that time the Defendant, or others acting on his behalf, divested the Plaintiff of his Goods, Chattels and worldly possessions by dealing with as well as disposing of them.
3. The Defendant breached his contractual and statutory obligations to the Plaintiff, gaining an advantage by those actions as well as permanently depriving the Plaintiff.
4. As a result of the above actions the Plaintiff has necessarily incurred a loss in the sum of fifteen thousand two hundred and forty dollars, $15,240.00 which he herein claims plus costs and interest.

16 As can be seen from the above, the complaint made no mention of any provisions of the RTA which Mr Waddington relied upon to impose liability upon Mr Kha. This omission may not have been fatal given that paragraph 3 of the claim refers to Mr Kha's statutory obligations, but the failure of Mr Waddington to fully articulate the legal basis of his claim against Mr Kha probably did contribute to the somewhat confused manner in which the trial proceeded.

17 The trial of the proceeding was delayed by an excursion to this Court in 2012 and 2013, when Mr Waddington brought a proceeding seeking judicial review of the decision of a Magistrate (not the Magistrate who ultimately heard the trial) refusing leave for Mr Waddington to be represented by an unqualified advocate ('Supreme Court proceeding'). On 24 October 2012, Mr Waddington's application for an interlocutory injunction and Mr Kha's application for summary dismissal in the Supreme Court proceeding came on for hearing before Lansdowne AsJ. Her Honour dismissed the application for an injunction, reserved judgment upon the application for summary dismissal, and made the following order:

By consent, the plaintiff and second defendant take all steps necessary to adjourn the hearing of proceedings between them in Dandenong Magistrates' Court currently listed for 2 November 2012 to the next available date after the determination of these proceedings (such date to be fixed in consultation with both parties).

18 Despite this order, for reasons which are unclear, but described by Mr Waddington in his affidavit as being 'due to circumstances beyond my control', in November 2012 the Magistrates' Court trial was relisted for hearing on 15 March 2013. Lansdowne AsJ delivered her ruling in the Supreme Court proceeding two days earlier, on 13 March 2013 and dismissed Mr Waddington's application for judicial review.[2] On 28 June 2013, Emerton J gave leave to Mr Waddington to appeal on the basis that there was a real issue to be tried, but dismissed the application for judicial review itself.[3]

19 At the commencement of the hearing in the Magistrates' Court on 15 March 2013, Mr Waddington made an application for an adjournment based upon the fact that matters in the Supreme Court proceeding were still pending, including a possible appeal against the orders of Lansdowne AsJ, and his unpreparedness for trial. The application was refused.

20 Following her refusal to grant an adjournment, the learned Magistrate asked Mr Waddington to call his first witness. As Mr Waddington was unprepared, he was the only witness. He stated that he was going to be relying upon a transcript of the final VCAT hearing (which included the evidence referred to at paragraphs 9 to 12 above), and was permitted to tender that transcript. He then digressed into what had occurred at the prior VCAT hearings, and then commenced reading from the transcript of the final VCAT hearing. Understandably, the learned Magistrate upheld Mr Cook's objection to this approach. Mr Waddington then went on to explain that the Tribunal Member found that Mr Kha was a rooming house owner, but that he withdrew the proceeding because he was in no position to establish the quantum of his claim. Upon receiving confirmation from the learned Magistrate that she would read the transcript of the final VCAT hearing he concluded his evidenceinchief.

21 Mr Waddington was briefly crossexamined by Mr Cook, who asked him upon what basis Mr Waddington contended that Mr Kha had an obligation to look after his goods. Mr Waddington in response referred to the provisions of the RTA, and gave evidence that he rented the room at the premises from Mr Kha. He gave evidence that he had not had a conversation with Mr Kha about the safekeeping of his goods, but he relied upon the email from Mr Kha to his parents which is reproduced at paragraph 2 above. He denied abandoning the goods, and that he had asked Colin Anthony to recover the goods. He believed that his parents had paid Mr Kha rent for his room at the premises.

22 Mr Kha was called to give evidence. He gave evidence that he was a tenant at the premises, and vacated the premises in about February 2011. He was a tenant of a section of the building, and had an office space where he worked after hours. He had no tenancy agreement with Mr Waddington, or any agreement with him to store and look after his goods, but he offered to Mr Waddington's parents to pack his goods and clean his room. He believed that was in December 2010. He believed the goods were still in Mr Waddington's room when he vacated the premises.

23 Mr Kha gave the following evidence under crossexamination by Mr Waddington:

(a) he could not recall when he first became a tenant at the premises, but the lease showed that it was July 2009;

(b) he lived at the premises for about two months before commencing to use part of the premises as office space;

(c) he described the premises as an office building;

(d) he could not recall when he first met Mr Waddington, but did not disagree with his suggestion that it was August 2009;

(e) Mr Kha agreed that he had a conversation with Mr Waddington about moving into the premises and the rental arrangements, and did not dispute that Mr Waddington contacted him in response to an advertisement placed by the colessee, Mr Nathan Massie;

(f) he was asked about how many rooms were at the premises and how they were occupied. He did not disagree with Mr Waddington's contention that there were five or six rooms that were occupied; and

(g) he disputed that Mr Waddington paid rent to him, as they had no tenancy agreement. He stated that Mr Waddington paid the rent to Mr Massie, but if he was in the office the rent was paid to him. At one stage he stated 'we ran it like a business operation.'

24 The proceeding was then adjourned part heard to 6 June 2013 owing to other business of the Court.

25 The trial resumed on 6 June 2013. Prior to that time, Mr Waddington had filed and served an application to reopen his case, which was at first rejected, but then allowed after the crossexamination of Mr Kha was concluded.

26 During the course of the resumed crossexamination, notwithstanding his testimony on 13 March 2013, Mr Kha denied ever having had a discussion with Mr Waddington about his tenancy. He gave some evidence about the layout and the use of the premises, and the role he undertook in maintaining and providing services to the premises. Mr Waddington put to Mr Kha the names of people who had resided at the premises over time. Mr Kha gave evidence about cleaning and packing up Mr Waddington's room. Mr Waddington asked Mr Kha about why he would be concerned about the local council inspecting the premises, but his answer was interrupted by the learned Magistrate. Mr Kha gave evidence that he did not move Mr Waddington's goods after packing them up and putting a lock on the door of the room, and he never saw them again. He denied that he did not properly secure the room. He denied that the lease was terminated by the new owner of the premises because the council had found he was running an unregistered room house, and he denied that he had any responsibility to take care of or arrange for the collection of Mr Waddington's goods.

27 Following Mr Kha's evidence, and the closure of his case, the learned Magistrate asked Mr Cook whether Mr Kha had a counterclaim on foot for the costs of cleaning, locks, or the time taken to travel down from Sydney.

28 After the learned Magistrate granted Mr Waddington's application to reopen his case, Mr Waddington called Mr Colin Antony and Mr Anthony Gay to give evidence.

29 Mr Anthony gave evidence about being requested by Mr Waddington to collect his goods from the premises, and finding them in an alleyway in torn plastic bags and soaked. There was also a bed and a mattress propped up against the wall, and Mr Gay told him that the goods had been there for about six weeks.

30 Mr Gay gave evidence that he lived at the premises with Mr Waddington, and Mr Kha was their landlord. He paid a bond and rent to Mr Kha, but after a time another person, 'Anna' collected the rent. After Anna moved out, Mr Kha asked him if he would like to collect the rent from the other tenants, which he collected and paid into Mr Kha's account. He had very limited dealings with Mr Massie. He gave evidence that seven people lived at the premises. Mr Gay said he had some discussions with Mr Kha about what was to be done with Mr Waddington's room, and that one day he returned to the premises and Mr Waddington's goods were outside in the laneway. He identified a receipt signed by him for rent received from Mr Waddington, which referred to Mr Kha and Mr Kha's ABN. He agreed with Mr Waddington that Mr Kha was 'in charge', and said that Mr Kha visited the premises approximately once a week while he was still in Melbourne.

31 Mr Gay gave evidence that towards the end of the lease, council inspectors visited the premises and said that the premises did not comply with the fire code and were not fit to be inhabited as a rooming house. Within a fortnight of that inspection, most of the residents had departed.

32 Mr Gay was briefly crossexamined by Mr Cook. Mr Waddington also sought to tender through Mr Gay documents produced by Monash City Council upon subpoena, but did not do so after Mr Cook conceded that Monash City Council found that the premises were an illegal rooming house. Mr Cook also conceded the value of the quantum of Mr Waddington's claim, so that it was not necessary for him to lead evidence about the nature and value of the goods lost. After oral submissions, the trial concluded on that day.

33 The Magistrate delivered her reasons for decision orally on 10 September 2013. She dismissed the proceeding and ordered that Mr Waddington pay Mr Kha's costs, fixed at $6,400. The substantive part of the Reasons are reproduced below:

The Plaintiff claims that he is the owner of goods, chattels and possessions and that the Defendants either separately or conjointly as, um, as David Kha ABN and that's the number there did on or about the 14th of January 2011 or certainly between the 1st and the 31st of January 2011 at the address of 51-53 John Street, Oakleigh convert the Plaintiff's goods to their own use and purpose. The Plaintiff further claims that at the time the Defendants or others acting on their behalf divested the Plaintiff of his goods, chattels and worldly possessions by dealing with them as well as disposing of them.

The Plaintiff further claims the Defendants breached their contractual and statutory obligations to the Plaintiff gaining an advantage by those actions as well as permanently depriving the Plaintiff and finally the Plaintiff claims that as a result of the above actions the Plaintiff has necessarily incurred a loss in the sum of $15,240 which he herein claims plus damages, general damages and sufferance plus costs and interest. ...

The Court heard evidence on 15 March 2013 and while it appears the evidence was concluded on that date on the return date of 6 June 2013 I granted Mr Waddington leave to reopen his case given he was an unrepresented litigant and I'm satisfied, um, and that's just the chronology. I'm satisfied on the evidence of the First Defendant, Mr Kha, that he was a tenant at the premises at 51-53 John Street, Oakleigh.

Mr Kha in the Court's view was a credible witness and I consider him also to be a witness of truth. His evidence was that in relation to the Plaintiff's goods he wrote to the mother of the Plaintiff, not being able to contact the Plaintiff and said that there was going to be an inspection by the agent and that the Plaintiff's room needed to be cleaned up. Mr Waddington, the Plaintiff's rent was due and there was a smell coming from the room. Mr Kha offered to clean the room up and this communication was evidenced by the email of the 19th of January 2013, 2011 I beg your pardon.

The Defendant, First Defendant, Mr Kha gave evidence that he cleaned up Mr Waddington's room, packed his goods and placed them in green bags, a bong was thrown out with other rubbish and goods belonging to the Plaintiff were placed in seven tubs and seven bags. The goods included a TV, a computer and a DVD. Nathan Massie did not assist in the clean up and a lock was put on the door of Mr Waddington's room.

Mr Kha said that his mother, his father and his wife assisted him to clean the room. Mr Kha's evidence was that the reason the room was cleaned was that the agent's inspection, the smell, the concern about the drug usage evidenced by the bong and the concerns about the attitude of council. Mr Kha's evidence is that he performed this task and did nothing further with the items and that he does not know what became of all of the items after that time. Last time Mr Kha saw the items was, um, in the room secured away in the seven bags and seven tubs.

Mr Kha's evidence, which I accept is that he did not move them after he and his family packed them up. His evidence also is that his tenancy ended when he cancelled it with Ray White in about February 2012, 2011. Mr Kha gave evidence that he had no idea how the Plaintiff's goods ended up outside and the Plaintiff's evidence was that his goods were ultimately found outside, water damaged and incomplete in the number of items that he had.

It is the Court's view that Mr Kha did not have responsibility for the goods, chattels and/or worldly possessions of the Plaintiff, nor am I satisfied that he disposed of them in the way alleged by the Plaintiff. I find that Mr Kha cleaned the Plaintiff's room, packed his items and locked the door having fixed a new lock to the door. That's the last he saw of the Plaintiff's items. Having heard the evidence of the Plaintiff I'm not satisfied he, I am satisfied that he abandoned his belongings at the premises, was not present when the room was cleaned and he was, he's not be able to say what happened to his items.

His case is speculation and conjecture. There's no evidence that Mr Kha converted any items that belonged to the Plaintiff. There's no evidence that Mr Kha divested himself of or disposed of the items belonging to the Plaintiff or that, and there's no evidence that he made any, um, anything out of the items. There is simply no evidence before me which proves the loss claimed and there's no evidence in relation to the way the loss is made up.

I consider I have no other option but to dismiss the complaint, um, it's regrettable that the Plaintiff's, um, possessions have ended up in the way that they have but it's the Court's finding it was not due to the cause of the Defendant, Mr Kha. So I propose to dismiss the claim.

34 Section 109 of the Magistrates' Court Act 1989 (Vic) provides that an appeal from a Magistrate must be on a question of law. In his Notice of Appeal, Mr Waddington identified the following questions of law:

1. Was it open to the Magistrate, on the evidence which was before the Court, to find that the Respondent is not liable for the destruction of the Appellant's goods, chattels and worldly possessions?
2. Was it open to the Magistrate, on the evidence which was before the Court, to find that the Appellant had abandoned is goods, chattels and worldly possessions?
3. Was the Magistrate's decision to disallow the admission of evidence pertaining to relevant VCAT hearings, a lawful and reasonable decision?
4. Could a reasonable Magistrate acting judicially have managed the cross-examination and examination of witnesses in the way in which those examinations were managed during the hearing?
5. Was the Magistrate's conduct of the hearing consistent with the obligations of courts in matters concerning unrepresented litigants?
6. Did the Magistrate give proper effect to the requirements of case management and other principles as per the Civil Procedure Act 2010?
7. Could a Magistrate acting judicially, and thus in accordance with procedural fairness, have conducted the case in the manner in which it was conducted?
8. Was it open to the Magistrate to refuse to grant an adjournment on 15th March 2013?

35 As discussed and agreed during the course of the hearing on 4 May 2015, the fourth, fifth, sixth and seventh questions of law were contracted into a single question, being whether the learned Magistrate afforded Mr Waddington procedural fairness in the manner in which she conducted the case, including the management of the examination and crossexamination of witnesses, having regard to Mr Waddington's status as a selfrepresented litigant. Further, it is clear from Mr Waddington's submissions, and references in paragraphs 1, 2 and 7 of the Grounds of Appeal that Mr Waddington claims that the learned Magistrate's reasons for decision were inadequate. Accordingly, I will consider that as a separate question of law. In Cosmopolitan Hotel (Vic) v Crown Melbourne Limited,[4] the Court of Appeal stated that:

While it is imperative to identify and define a question of law, courts will not read a notice of appeal narrowly so as to oust the appellate jurisdiction over a decision of VCAT. Therefore if questions of law are not sufficiently identified in the notice, but are nonetheless identified the court will address them.

36 In any event, if I thought it necessary that the questions of law include a specific reference to the adequacy of reasons, I would have suggested that Mr Waddington make an application for leave to amend his notice of appeal, and granted leave to amend, there being no apparent prejudice to Mr Kha in that course, given that the issue had been squarely raised in Mr Waddington's Grounds of Appeal and outline of submissions.

37 Mr Waddington's submissions on each of the questions of law, as revised, can be synthesised from the grounds of appeal, his affidavit filed 16 October 2013, his written outline of submissions and his oral submissions during the course of the hearing of the appeal. The solicitor for Mr Kha did not file and serve any written submissions in the interest in saving costs, and made brief, but to the point oral submissions during the course of the hearing in seeking to uphold the decision below. The submissions on each of the questions of law, as reformulated during the course of the hearing, along with my findings on each of the questions, are discussed in the following sections.

Question 8: Was it open to the Magistrate to refuse to grant an adjournment on 15 March 2013?

38 At the commencement of the hearing on 13 March 2013, Mr Waddington applied for an adjournment on the basis that:

(a) the Supreme Court proceeding had not concluded, notwithstanding the fact that Lansdowne AsJ had made orders dismissing the proceeding two days before, as the question of costs awaited a further hearing, and Mr Waddington intended to lodge an appeal; and

(b) Mr Waddington was unprepared, given that he expected that the trial would be adjourned, and had not organised his witnesses or documents.

39 The learned Magistrate refused the adjournment on the basis that final orders had been made in the Supreme Court proceeding, the matter had been on foot for over a year, and the proceeding had been 'booked in' as a contest since November 2012.

40 Mr Waddington submitted that the ambiguities surrounding the status of the Supreme Court proceeding warranted an adjournment, and that the failure to allow an adjournment has led to an unnecessary complication of the proceeding, and led to the somewhat disorderly manner in which the matter proceeded. The trial was supposed to be listed with cooperation between the parties, which did not occur. He conceded that he simply did not have time to prepare for trial between 13 March 2013 and 15 March 2013. The practical effect of the refusal to adjourn the hearing meant that he could not really run his case properly, and in an orderly fashion, despite the fact the trial was ultimately adjourned part heard. If an adjournment had been allowed, the hearing on 15 March 2013 could have been used as an opportunity to undertake some case management. There was no particular urgency to proceed with the trial.

41 Mr Cook, on behalf of Mr Kha, submitted that the refusal of the adjournment was not an appellable error. Mr Waddington knew that the matter was listed for trial, and had ample time to prepare. In any event, any difficulties Mr Waddington faced were in effect cured by the adjournment of the trial part heard, and the decision to allow Mr Waddington to reopen his case.

42 In my view, Mr Waddington has not demonstrated an error of law on the part of the Magistrate in refusing an adjournment. The decision to grant an adjournment is discretionary. While the discretion must be exercised judicially, appellate courts are notoriously reluctant to interfere with the exercise of a discretion, especially with respect to procedural matters.[5] While the timing of the hearing was probably unfortunate given the short period of time between the decision of Lansdowne AsJ and the hearing date, it is difficult to see how the learned Magistrate's discretion had miscarried. The hearing had been fixed for some time, and Mr Waddington was aware of the fixture. Time had been blocked out of the court schedule, although apparently not enough. Mr Waddington only requested an adjournment the day before the hearing. Mr Cook had already been briefed, and the evidence is that Mr Kha lives in Sydney, and had no doubt made travel arrangements which would be hard to alter at late notice. Based upon the principles in AON Risk Services Pty Ltd v Australian National University,[6] the Magistrate had solid grounds for refusing an adjournment.

Question 1: Was it open to the Magistrate, on the evidence before the Court, to find that the Respondent is not liable for the destruction of the Appellant's goods, chattels, and worldly possessions?

43 This question goes to whether the learned Magistrate ought to have found that the evidence before the Court clearly established that Mr Kha was a rooming house owner under the RTA, and thus liable to secure the safety of Mr Waddington's belongings. Many of the submissions made by Mr Waddington in respect of this question of law are more relevant to the question of procedural fairness and the adequacy of the Reasons, and will be considered in the context of those questions.

44 Counsel for Mr Kha submitted that Mr Waddington sought to attack the factual finding that Mr Kha was not the landlord, and no question of law arose. I agree. It is not open to me to find that there was no evidence before the Magistrate to support the finding she made, or that the finding was so unreasonable that no reasonable magistrate could have made that finding. Accordingly, this question concerns the merits of the factual findings of the Magistrate. No arguable question of law arises.

Question 2: Was it open to the Magistrate, on the evidence which was before the Court, to find that the Appellant had abandoned his goods, chattels, and worldly possessions?

45 Mr Waddington contends that the evidence before the Court could not support a finding of abandonment, and that the Reasons did not disclose any reason for the findings of abandonment. If it was Mr Kha's contention that Mr Waddington had abandoned his possessions, it would have been open to Mr Kha to go to the VCAT to seek a declaration of abandonment under s 241 of the RTA, which he did not do.

46 Mr Cook submitted that this question of law was misconceived, because the Magistrate found that Mr Kha was not a rooming house owner, and therefore it was unnecessary to deal with the question of abandonment.

47 I agree. In any event, it was not contended by Mr Waddington that if in fact a finding of abandonment had been made, there was no evidence upon which such a finding could be made. Indeed, Mr Waddington's own evidence on the point was somewhat equivocal.

Question 3: Was the Magistrate's decision to disallow the admission of evidence pertaining to relevant VCAT hearings a lawful and reasonable decision?

48 As noted above, on the first day of hearing, the Magistrate allowed Mr Waddington to tender the transcript of the final VCAT hearing, during which Mr Waddington gave the evidence summarised in paragraphs 9 to 12 above, and the Tribunal Member made certain findings prior to the discontinuance of the proceeding. Of course, the Magistrate was not bound by the finding of the Tribunal Member that Mr Kha was a rooming house owner. She did not allow Mr Waddington to tender the transcripts of the previous three hearings ('prior VCAT hearings'). Arguably, this question of law could have been dealt with as a particular of an alleged lack of procedural fairness. However, it is difficult to see where this question goes. In his submissions, Mr Waddington, when asked how he would have deployed the transcripts and orders of the prior VCAT hearings, he stated that he wanted to tender them for background information, and to illustrate Mr Kha's poor conduct. However, as noted by Mr Cook, there was nothing to stop Mr Waddington crossexamining Mr Kha regarding the statements made by his representatives or witnesses in the prior hearings, then producing the transcripts in the event of any inconsistency. The Magistrate's refusal to allow the tender of the transcripts did not unduly compromise Mr Waddington's ability to present his case.

49 For completeness, I note that Mr Waddington stated that he wanted to use the transcripts to crossexamine Mr Kha's mother, who had been subpoenaed to attend court on 15 March 2013. She attended court on 15 March 2013, but not on 6 June 2013 when the proceeding resumed part heard. Mr Waddington did not press the issue of Mrs Kha's failure to attend before the Magistrate on 6 June 2013.

50 While the learned Magistrate's refusal to allow Mr Waddington to tender the transcripts of the prior hearings may have reflected the rather negative attitude that the learned Magistrate appeared to have towards Mr Waddington, I agree that Mr Waddington was not entitled, as of right, to tender them. Mr Cook could have objected to their tender on the basis that they contained inadmissible hearsay evidence, given they contained statements made by persons who did not give evidence at the trial. Further, Mr Cook is correct in saying that Mr Kha could have been crossexamined on their contents, and, as such, the refusal of the Magistrate to accept them into evidence did not materially disadvantage Mr Waddington in the presentation of his case.

Questions 4, 5, 6 and 7: was Mr Waddington accorded procedural fairness?

51 As noted above, it was agreed during the course of the hearing of the appeal that these questions could be conflated into a single question, being whether the learned Magistrate afforded Mr Waddington procedural fairness in the way she conducted the case, having regard to Mr Waddington's status as a selfrepresented litigant.

52 Mr Waddington was very critical of the manner in which the learned Magistrate conducted the trial. At a high level, Mr Waddington complained that the learned Magistrate failed to provide procedural guidance on aspects of civil procedure, including the crossexamination of witnesses, of the nature specified by Bell J in Tomasevic v Travaglini.[7] Mr Waddington submitted that, in any event, there was a lack of appropriate case management, resulting in a high level of uncertainty as to the real issues in dispute in the proceeding. More specifically, Mr Waddington complained that the learned Magistrate repeatedly restrained him from adducing relevant evidence from Mr Kha in crossexamination, or hear submissions from him regarding the relevance of the evidence sought to be adduced. He was prevented from appropriately examining his own witnesses. Mr Waddington cited a number of examples of instances where he believes he was unfairly treated: including, among other things, a part of the proceeding where the learned Magistrate appeared to be encouraging Mr Kha to bring a counterclaim. He believed that the learned Magistrate's decision to allow him to reopen his case was for the purpose of 'giving the colour of fairness if you like to cover up the unfairness'.

53 Mr Cook submitted that Mr Waddington has an unrealistic view of the court's case management function in advocating a more interventionist approach. He was afforded an ample opportunity to present his case, a considerable amount of leniency and procedural assistance by the court and any inconsistencies in the approach of the learned Magistrate did not disadvantage Mr Waddington.

54 In my view, Mr Waddington was, by reason of the manner in which the trial was conducted, denied a fair and reasonable opportunity to present his case, and to some extent, this unfairness stems from the failure of the learned Magistrate to clearly identify the issues in the dispute at the commencement of the trial. Of course, the nonspecific nature of Mr Waddington's pleading contributed to the lack of clarity about the issues in the proceeding, but this could have been rectified by allowing Mr Waddington to make a brief opening statement, in particular, to enable him to explain his reliance upon the rooming house provisions of the RTA. In particular, if Mr Waddington could establish that Mr Kha was a rooming house owner within the meaning of the Act, it was not necessary for Mr Waddington to establish that Mr Kha had destroyed or converted the goods for his own use: all that it would be necessary for Mr Waddington to show is that Mr Kha had failed to meet his statutory obligations to keep them secure. However, it is not apparent from the transcript of the trial or the Reasons that this was the issue in the forefront of the learned Magistrate's mind. Instead, at the commencement of the trial, the learned Magistrate asked Mr Cook to explain what the case was about. Mr Cook explained that the proceeding was about 'a situation where Mr Waddington claims that the Defendant was in bailment and acting as a bailee in relation to certain goods while Mr Waddington was unable to retrieve those goods for whatever purposes.'[8] Mr Waddington then tried to explain the manner in which he put his case but was cut off and the learned Magistrate moved straight on to the adjournment application.

55 Once the adjournment application was refused, rather than providing an opportunity for Mr Waddington to make a brief opening statement, her Honour simply told him to call his first witness. After asking a few questions of Mr Waddington, she then stated that she was not going to ask him any questions, as that would amount to providing an unwarranted amount of assistance to an unrepresented litigant. She stated:[9]

Mr Cook, I don't think it is appropriate that I ask Mr Waddington questions because I'm very conscious while he's unrepresented I'm not going to assist him with his case just as I'm not going to assist you with your client's case.

I have to be very impartial here. So while he's in person I think it would be prudent not to be asking him questions. So I think I might just say to him prove his case.

56 The learned Magistrate's lack of appreciation of the issues in the case also appear to have influenced her approach to Mr Waddington's crossexamination of Mr Kha. She repeatedly intervened in Mr Waddington's crossexamination of Mr Kha, ruling as irrelevant questions which clearly went to Mr Kha's role at the premises, and in particular, whether he was a rooming house owner within the meaning of the RTA. Only some of these interruptions were in response to objections made by Mr Cook. Further, at the resumed hearing, she did not allow Mr Waddington to reopen his case or inspect subpoenaed documents until after the crossexamination of Mr Kha was concluded, notwithstanding that the additional evidence and the contents of the subpoenaed documents were matters which could have properly been put to Mr Kha.

57 Each of these instances, of themselves, are probably insufficient to lead to a finding that there was a denial of procedural fairness. However, taken together, the cumulative effect of various aspects of the conduct of the trial, along with the apparent irritation displayed by her Honour regarding Mr Waddington's conduct of the case, is that Mr Waddington was denied the opportunity to properly present his case.

58 Of course, the Notice of Appeal does not include a question of law alleging actual or apprehended bias, although Mr Waddington makes such an allegation in his affidavit in this proceeding. However, little turns upon that for the purposes of this appeal, and there is no need for me to make any findings of that nature. However, the persistent interruptions of the learned Magistrate, couched in terms of avoiding irrelevant matters and in the interests of saving time did in fact prevent Mr Waddington from adducing evidence and making submissions regarding matters of some relevance to the issues in the proceeding, and in particular, whether Mr Kha was a rooming house owner within the meaning of the RTA.

59 Of course, it is not unheard of for judicial officers to feel and express some frustration with selfrepresented litigants, and appellate courts have traditionally been sympathetic to the difficulties often faced in that regard.[11] However, while it is clear from the transcript that Mr Waddington lacked some understanding of what was required from him, and was on occasion hesitant and indecisive in the way he presented his case, it is apparent to me from his presentation and submissions before me at the hearing of this appeal that Mr Waddington is not a difficult, or 'querulant' litigant. Dogged maybe, as illustrated by the issue of the Supreme Court proceeding, and appeals in that proceeding, but he was respectful in court and showed no signs of shearing off into irrelevant matters in his submissions. His demeanour is not of a nature which causes undue difficulty in the management of a court room, and he exhibits sufficient intelligence and communication skills to suggest that if given a relatively minimal level of guidance and some leeway he would be capable of competently presenting his case. However, while it is apparent that Mr Waddington understood the issues in this case, he was not given an adequate opportunity to articulate these at trial, and any requests he made for guidance and assistance were refused.

60 Mr Waddington submitted that the learned Magistrate failed to provide him with the assistance due to him as an unrepresented litigant as specified by Bell J in Tomasevic v Travaglini.[12] His Honour held that every judge has a duty to ensure a fair trial, and, in many cases involving self-represented litigants, this may involve the provision of assistance by the judge to the self-represented litigant, including assistance regarding issues concerning substantive legal rights as well as procedural matters, provided that the assistance is proportionate and does not compromise the reality and appearance of judicial neutrality. In the case before him, Bell J found[13] that the judge had a duty to:

• recognise Mr Tomasevic as someone who, as a self-represented litigant, was gravely disadvantaged;
• explain to him the procedures that would be followed in the hearing and determination of the application;
• explain to him the legal requirements that he had to satisfy, namely that the delay was due to exceptional circumstances and the informant's case was not materially prejudiced;
• encourage him to make submissions on relevant issues, but explain to him what was relevant;
• discourage him from making submissions on irrelevant issues, but explain to him what was irrelevant;
• ask appropriate questions to confirm he was fully putting forward the matters he wished to rely on, and ask for elaboration of any areas apparently not fully covered; and
• before deciding the application, ask him if there was anything else that he wanted to add.

61 In the current case, the degree of assistance required by Mr Waddington was relatively limited. It appears from the transcript of the final VCAT hearing and the final submissions made by Mr Waddington at trial that Mr Waddington was well versed in the legal issues associated with his case and the relevant provisions of the RTA. However, it would have assisted Mr Waddington (and the other participants in the trial) if he were provided an opportunity to provide a brief opening statement regarding the issues in the case, and in particular, his reliance upon the relevant provisions of the RTA. If it was necessary for him to plead these matters in his statement of claim, that issue could have been dealt with prior to him giving evidence. Further, given that Mr Waddington's application for an adjournment was refused, and he was underprepared, he could have been informed that if he wanted to call any other witnesses, he would need to make an application to reopen his case, and establish special circumstances in order to obtain that leave. He may have been assisted by some prompting during his evidenceinchief to ensure that he presented a logical chronology of events. Little further assistance would have been required, and, in circumstances where Mr Kha was represented by a competent and no doubt experienced solicitor, there would have been little risk that Mr Kha's position would have been prejudiced by the provision of such assistance.

62 Question 6 in the Notice of Appeal raises the issue of whether the learned Magistrate gave proper effect to the requirements of the Civil Procedure Act 2010 (Vic) ('CPA'). In particular, Mr Waddington submitted that the learned Magistrate failed to identify the real issues in dispute, and engage in the level of case management necessary to give effect to the overarching purpose of the CPA, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[14] Mr Waddington referred to Part 5 of the Magistrates' Court General Civil Procedure Rules 2010 ('Rules'), which provides, among other things, that the overriding objective of the Rules is to enable the Court to deal with a case justly. Rule 1.21(2) provides that:

(1) The overriding objective of these Rules is to enable the Court to deal with a case justly.

(2) Dealing with a case in ways which are proportionate to -

(a) effectively, completely, promptly and economically determining all the issues in the case;

(c) dealing with the case in ways which are proportionate to -

(d) allocating to the case an appropriate share of the Court's resources, while taking into account the need to allocate resources to other cases.

63 Further, Rule 1.24 provides that:

(1) The Court must further the overriding objective by actively managing cases.

(a) encouraging the parties to cooperate with each other in the conduct of proceedings;

(c) deciding promptly which issues need full investigation and a hearing and accordingly disposing summarily of the others;

(d) deciding the order in which the issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution procedure if the Court considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i) dealing with as many aspects of the case as it can on the same occasion.

64 The CPA provides that the Court must have regard to the overarching objective in the exercise of its powers. However, while the CPA provides for sanctions to be imposed upon parties to a proceeding and other participants in civil proceedings for any breaches of the overarching obligations, the CPA is silent as to the consequences of any failure of a judicial officer to promote the overarching objective. I am unaware of any authority which has directly considered this issue. However, while I did not hear full argument on the matter, one would expect such conduct would amount to an error of law amenable to appeal. However, in many cases, including the proceeding under review in this appeal, there would probably be considerable overlap between conduct which falls short of the standards of case management required by the CPA and the Rules and conduct which breaches the obligation to afford procedural fairness. Given that I have found that Mr Waddington was not afforded a reasonable opportunity to present his case, I do not need to consider this matter further, save to observe that if there had been an identification of the issues in dispute at an early stage of the proceeding, it might be that many of the difficulties experienced by Mr Waddington might have been avoided.

Additional question: did the learned Magistrate provide adequate reasons?

65 The lack of clarity in the manner in which the trial was conducted was illustrated by and manifested itself in the Reasons. As stated by Beach J (as he then was) in Dimatos v Coombe & Ors (footnotes omitted):[15]

Whilst the extent of the reasons in any case will depend upon the circumstances of the case, the reasons should identify the issues in dispute; deal with the substantial points that have been raised, include findings on material questions of fact; refer to the evidence upon which those findings are based, and provide an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion. Failure to expose this path of reasoning is an error of law.

66 In the current case, the Reasons fail to meet the requirements set out above. Once again, the Reasons demonstrate a lack of clarity regarding the real issues in dispute in the proceeding. In particular, the Reasons proceed on the basis that Mr Waddington's case was that Mr Kha or his agents converted Mr Waddington's goods for their own advantage. The learned Magistrate believed Mr Kha when he gave evidence that he had cleaned up Mr Waddington's room, secured the room, and did not know what had become of the goods thereafter. However, with respect, that finding does not go to the real issue at the heart of the proceeding. It was not Mr Waddington's case that Mr Kha stole the goods, or even that he was responsible for leaving the goods outside. Rather, Mr Waddington's case was that Mr Kha was a rooming house owner within the meaning of the RTA, upon whom the RTA imposes positive obligations with respect to the security of resident's goods, even after the departure of the resident. This much was clear from the affidavit sworn by Mr Waddington on 29 May 2013 (that is, some days before the trial resumed on 6 June 2013) in support of his application to reopen his case, but the Reasons make no mention of this. It may well be that a court or tribunal could find that Mr Kha had fulfilled those obligations, or was entitled to dispose of the goods, but that is not apparent from the Reasons. Furthermore, the Reasons completely fail to address the evidence of Mr Waddington and Mr Gay regarding Mr Kha's role at the premises, and whether or not that evidence had established that Mr Kha was a rooming house owner within the meaning of the RTA.[16] No mention is made of the concession made by Mr Cook on the final afternoon of the trial that the documents produced upon subpoena by the Monash City Council disclosed that the local council had made a finding that the premises were an illegal rooming house,[17] and that Mr Gay's evidence in that regard was correct. Finally, the Reasons refer to there being 'simply no evidence in relation to the way the loss is made up', in circumstances where the quantum of the claim was conceded by Mr Cook.[18]

67 While I accept that one should not impose an undue burden upon judicial officers in busy courts to prepare extensive written reasons in all cases, I have sympathy with Mr Waddington's submission that the Reasons were such that he simply did not know why he lost. The observations of Elliott J in The Marriage of Tennant,[19] relied upon by Mr Waddington are apposite in the current case:

Apart from the requirements of such reasons for the purpose of the appeal process, there is the basic ground of criticism that litigants who go to a court, put their witnesses up, argue their case and attempt to controvert the opposing case are entitled to know, if they lose, why they lost. If they are given no reasons they may feel the decision against them was conceived in prejudice, bias, or caprice.

68 Accordingly, Mr Waddington has made out, in effect, two grounds of appeal. In his Notice of Appeal, he sought orders that the orders made by her Honour be set aside, and that his claim for damages be granted. However, during the course of the appeal he conceded, appropriately in my view, that the proper course would be for the matter to be remitted to the Magistrates' Court for re-hearing. Given the nature of the factual contest between the parties, it would be close to impossible to fairly determine the dispute on the transcript alone. Further, I would direct that Mr Waddington, upon the matter being remitted, promptly make an application to amend his statement of claim to properly plead the material facts and statutory provisions relied upon to enable the Court to be provided with a properly articulated claim.

69 I will hear further from the parties on the form of orders and the question of costs, including whether it is appropriate to make an order under the Appeal Costs Act 1998 (Vic).

[1] This discussion was a little confusing, as Mr Waddington's friends seemed to interpret the Tribunal Member's explanation about VCAT being a 'no costs' jurisdiction as meaning that Mr Waddington would not be entitled to recover compensation.

[2] Waddington v Magistrates' Court of Victoria & Kha [2013] VSC 101.

[3] Waddington v Magistrates' Court of Victoria & Kha (No 2) [2013] VSC 340.

[4] [2014] VSCA 353 [49] per Warren CJ.

[5] House v R [1936] HCA 40; (1936) 55 CLR 499.

[6] [2009] HCA 27; (2009) 239 CLR 175.

[7] [2007] VSC 337; (2007) 17 VR 100.

[11] For example, in Sun Zhan Qui v Minister of Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551, where the Court found in response to an allegation of bias that 'it is not enough that the decision maker displayed irritation or impatience or even used sarcasm.'

[12] [2007] VSC 337; (2007) 17 VR 100 [139] to [142].

[14] Section 7 of the CPA.

[15] [2011] VSC 619.

[17] Noting, however, that s 507 of the RTA provides that if in any proceeding a person claims that the RTA does not apply, the onus of proof rests upon the party asserting that the RTA does not apply.