Plaintiffs v Defendant

Supreme Court of Victoria|2015-12-22|Before: Daly AsJ

JUDICIAL REVIEW AND APPEALS - Application for leave to appeal pursuant to Section 148 of the Victorian Civil and Administrative Tribunal (VCAT) Act 1998 (Vic) - Procedural fairness - Self-represented litigants with a poor command of English - Application of the rule in Jones v Dunkel where a party is unrepresented - Whether trial judge provided fair warning to plaintiffs of consequences of not calling witness to give evidence - Tribunal member adopted Jones v Dunkel inferential reasoning - Downes v Maxwell Richard Rhys & Co [2014] VSCA 193; (2014) 313 ALR 383, Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & ors [2014] VSC 619 and Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 applied - Error of law - Failure to provide adequate assistance - Breach of procedural fairness - Leave to appeal granted - Appeal allowed.

PRACTICE AND PROCEDURE - Procedural fairness - Whether tribunal member's refusal to allow the plaintiffs to have legal representation at the VCAT hearing and direction to the plaintiffs to sit at the back of the hearing room for a period of time created an apprehension of bias or amounted to a breach of procedural fairness - Intervention of judicial officer in the presentation of evidence - Whether tribunal member failed to take into account relevant considerations and took into account irrelevant considerations - No denial of procedural fairness - No error of law.

1 This is an application for leave to appeal from the decision of a member of the Victorian Civil and Administrative Tribunal ('VCAT') to dismiss a claim brought by the plaintiffs, Mr Chen Wei and Ms Qi Yun Xia, against their former daughter-in-law, Ms Na Yu. On 28 April 2015, Derham AsJ made orders to the effect that the application for leave, if granted, be heard together with the appeal itself.

2 The plaintiffs claimed that Ms Yu owed them a total of $39,600, including $38,000 said to be the unpaid balance of a loan of $60,000 made by them to Ms Yu in May 2012, and $1,600 lent by Ms Xia to Ms Yu in or about August 2012 to pay for an airfare to China. Ms Yu does not deny having received the sum of $60,000 (which was apparently used to settle the purchase of two apartments in Doncaster), but says that this sum was paid to her upon the instructions of the true borrower, her ex-husband, and the plaintiffs' son, Mr Wen Tao Wei ('Mr Wei junior'). She denies having requested or having received the sum of $1,600 to fund the purchase of an airfare.

3 Neither of the plaintiffs or Ms Yu were represented at the first directions hearing at VCAT, or at a hearing to determine whether VCAT had jurisdiction to hear a number of claims brought by the plaintiffs against Ms Yu. However, at the trial of the claim at VCAT ('VCAT hearing'), which took place over two days (5 August 2014 and 7 October 2014), Ms Yu was represented by Mr Selimi of counsel, who also appeared for Ms Yu on the hearing of this application. The plaintiffs represented themselves at the VCAT hearing, and at the commencement of this proceeding. However, they have since obtained pro bono legal assistance, including solicitors and senior and junior counsel, and the proposed notice of appeal and the affidavit and submissions in support of the application have been prepared with the assistance of lawyers.

4 The proposed notice of appeal is an extensive document, posing five questions of law, and detailed grounds of appeal in respect of each of the questions of law. The proposed questions of law are as follows:

Whether the VCAT erred in law by the Member's conduct towards the applicants at the hearing on 5 August 2014 and 7 October 2014 giving rise to a reasonable apprehension of bias ('apprehension of bias ground').
Whether the VCAT erred in law by not affording the applicants procedural fairness at the hearing on 5 August 2014 and 7 October 2014 ('denial of procedural fairness ground').
Whether the VCAT erred in law by failing to provide assistance to the applicants who were self-represented litigants, unable to speak English ('failure to assist ground').
Whether the VCAT erred in law by taking into account an irrelevant consideration ('irrelevant consideration ground').
Whether the VCAT erred in law by failing to take into account a relevant consideration ('relevant consideration ground').

5 Before turning to the detailed grounds of appeal, and which of them, if any, are made out, I shall outline the factual background to the plaintiffs' claims, along with what transpired during the course of the VCAT hearing.

6 In 2010, Mr Wei junior entered into contracts of sale for two apartments in Doncaster 'off the plan'. He was the sole purchaser of one of the apartments, and a joint purchaser of the other. The other purchaser, Mr Yi Heng Luo, was called by the plaintiffs to give evidence at the VCAT hearing. It appears that Mr Wei junior obtained the funds to pay the deposits upon the apartments from his parents. It is unclear whether Mr Wei junior had even met Ms Yu at the time that the apartments were purchased.

7 Mr Wei junior and Ms Yu married in 2011. By early 2012, they had a child together. However, the relationship was rocky. According to Ms Yu, Mr Wei junior was addicted to 'ice', and was aggressive and violent towards her. He had problems with his business, and he was being pursued by creditors. The settlement of the purchase of the apartments was to occur in May 2012. According to the plaintiffs, Ms Yu contacted Ms Xia and asked her to lend her the funds to complete the purchase of the apartments, and that she would repay the sum of $30,000 within three weeks. Ms Xia agreed, and arranged to borrow these funds from her own sister-in-law, Mr Wei's sister, and transferred the funds to Ms Yu's bank account on 9 May 2012. However, no funds were repaid, despite requests, until early July 2012, when Ms Yu repaid the sum of $22,000. It is not clear whether, at the time that the funds were advanced, the plaintiffs were aware that the apartments were registered in Ms Yu's name, rather than Mr Wei junior's name.

8 Ms Yu and Mr Wei junior separated only days after they moved to one of the apartments with their son and Ms Yu's mother in midJune 2012. A few weeks later, in early July 2012, Ms Yu repaid the sum of $22,000 to the plaintiffs. Sometime later, Ms Yu and Mr Luo decided that they needed to sell the apartment they owned jointly. It was sold by auction on 31 March 2013. Following the sale, a solicitor was requested to draw up an agreement (there is some dispute as to whether it was drawn up at Ms Yu's instigation or Mr Luo's instigation). The draft agreement was not in evidence before me, but it appears from the transcript that it contained a term purporting to release Ms Yu from any obligation to repay the plaintiffs the balance of the funds owed to the plaintiffs. The plaintiffs refused to sign this agreement. Later in 2013, the plaintiffs commenced their claim in VCAT.

9 Ms Yu's version of events is somewhat different than that of the plaintiffs. She says that in the early part of 2012, she was discussing the question of how to fund the settlement of the purchase of the apartments with Mr Wei junior. They agreed that Ms Yu would be nominated as the registered proprietor of the apartments, as she would have a better chance of obtaining bank finance. Mr Wei junior told her he would borrow the shortfall between the funds able to be raised from the bank and what was needed to settle the purchase from his parents. The funds were paid into her account in order to shield them from his creditors, and when she repaid funds to the plaintiffs, she did so upon the instructions of Mr Wei junior. She said that the draft agreement was drawn up at Mr Luo's instigation, not upon her instructions.

10 As noted above, the matter first came on for hearing on 7 August 2014. A Mandarin interpreter had been booked for the morning. The plaintiffs were selfrepresented. Mr Selimi sought leave to appear on behalf of Ms Yu. Leave was granted on the grounds advanced by Mr Selimi: that is, that the allegations made against Ms Yu involved questions of fact and law in terms of the characterisation of payments made, and that Ms Yu did not wish to have any direct exchange or dialogue with her former parents-in-law because of the stress she was experiencing.

11 The tribunal member then went on to explain the procedure at the VCAT hearing. The transcript records the following address to the parties:[1]

MEMBER: I address myself to all the parties, less so to the respondent who is legally represented. This is the first hearing of the substance of your claim against Ms Yu. This is a tribunal of law, you have already sworn or affirmed to tell the truth. As a tribunal of law matters here today will only be decided on the evidence presented today, not on evidence you have forgotten to give or did not bring, but evidence here today. You must prove your case on what is called the balance of probabilities. In a layman's sense that means you must satisfy the tribunal of the truth of your materials to the extent of 50 per cent or more.

If you do that your claim can be proved unless that is dislodged by evidence from the respondent. I will hear your evidence Mr Wei and yours, Ms Xia first. Then I will hear evidence of Ms Yu. You will each have the opportunity to cross-examine each other or ask questions of the other's evidence. When the evidence is finally completed by Ms Yu, you will have the opportunity to reply to aspects of that evidence. I have granted leave for Mr Selimi to appear on behalf of the respondent, I will be asking and I do ask Mr Selimi now, to be aware of the fact that the applicant is not legally represented and that I may intervene in the conduct of crossexamination and generally otherwise throughout these proceedings.

12 The plaintiffs opened their case by giving evidence themselves. The presentation of their evidence was somewhat chaotic, by reason of them in effect giving evidencein-chief and being crossexamined together, and by reason of the language barrier and the presence of the interpreter. While Ms Xia ought to have been the primary witness, in that she was the party to each of the alleged conversations with Ms Yu, Mr Wei (whose command of English was superior to that of his wife) appeared to dominate the presentation of the plaintiffs' case. They tendered a statement made by Mr Wei's sister, and Mr Wei junior over the objection of Mr Selimi. Neither Mr Wei's sister or Mr Wei junior were available to give evidence. When asked by the tribunal member why Mr Wei junior was not at the tribunal that day, Mr Wei said that his son had a cold.

13 The plaintiffs tendered and relied upon a document said to have been signed by Mr Wei junior, dated 2 August 2014, and headed 'To whom it may concern' ('2 August 2014 letter'). The 2 August 2014 letter states as follows:

To whom it may concern.

My name is Wen Tao Wei. I live in 5 Ralph St Bulleen, here is my statement below.

In May 2012, I didn't ask my parents to borrow any money, I didn't know that my wife Na Yu borrowed the money off my parents until my parents told me in July. Na Yu did this behind my back while I was away.

I assure that the statement I provided is true and willing to take legal responsibilities.

Yours faithfully,

Wen Tao Wei

14 Indeed, the apparent inconsistency between the terms of the 2 August 2014 letter and another document was the primary focus of the crossexamination of the plaintiffs. Annexed to the plaintiffs' points of claim relied upon by the plaintiffs at the VCAT hearing was a document dated 5 July 2012 (that is, a few days after the repayment of $22,000), signed by Mr Wei junior ('IOU document'). The English translation of the IOU document is as follows:

IOU

I (Wentao Wei) borrowed $38,000.00 Australian Dollars from the parents for paying 5% of the down payment on 211/8 Berkeley St, Doncaster and making loan repayments. The money has been deposited in the account of Na Yu.

Borrower Wentao WEI.

05 July 2012

15 Notwithstanding the terms of the IOU document, the plaintiffs stubbornly refused to accept Mr Selimi's contention that this document was inconsistent with the terms of the 2 August 2014 letter, or with their allegation that they lent the money to Ms Yu, not Mr Wei junior. They gave evidence that the IOU document was drawn up by Mr Wei junior at their request in order to provide proof of the loan by them to Ms Yu.

16 The remainder of the first day of the hearing was taken up by the evidenceinchief and crossexamination of Mr Luo. At one point during crossexamination, the plaintiffs were directed to sit at the back of the hearing room. They were required to remain there for some ten minutes. This direction is relied upon by the plaintiffs to support the contentions in their Notice of Appeal that the tribunal member could have been perceived to have been biased against them. However, the (uncontested) evidence of Ms Yu[2] is as follows:

I refer to paragraph 26 of the Wei affidavit where Mr Wei states that he and his wife were required to remain at the back of the hearing room for approximately 10 minutes. I recall that during the proceeding before VCAT, when Mr Luo, who was called by the Applicants as a witness, was giving evidence to the Tribunal, the Applicants were audibly whispering, in Mandarin, to the witness to change his response to the questions that he was being asked. Although Member Sweeney may not have understood what was being said in Mandarin between the Applicants and the witness, I am fluent in Mandarin and understood that the Applicants were trying to tell Mr Luo what to say to the Tribunal. I believe that the Member asked the Applicants to move to the back of the hearing room to stop them from interfering with the witness during his evidence. The second time Mr Wei was asked to sit at the back of the hearing room was when Mr Wei was intimidating me while I was giving my evidence.

17 Mr Luo did not appear at the resumed hearing on 7 October 2014 for the purposes of reexamination. On 7 October 2014, Ms Yu gave evidence, and was crossexamined by Mr Wei and Ms Xia. The tribunal member on two occasions also refused Mr Wei permission to hand up what was described by Mr Wei as a 'written statement', saying on the final occasion that he did not usually invite submissions from selfrepresented litigants.

18 Earlier in the day, the tribunal member had told Mr Wei that he would be removed from the hearing room if there were another outburst by him. This occurred after Mr Wei interjected when Ms Yu gave evidence about the violent behaviour of Mr Wei junior.

19 After the conclusion of the evidence, the tribunal member stood the matter down and gave an oral ruling in the afternoon, dismissing the plaintiffs' claims. In the course of the ruling, the tribunal member commented upon the difference between the IOU document and the 2 August 2014 letter. He stated as follows:[3]

The letter of the son, dated 2 August 2014, to which I have referred, which is (indistinct), about not asking the parents to borrow any money. The son did not attend. This is important evidence, and the tribunal can only comment and note the absence of the son to give such evidence. This letter, this statement, is done just immediately prior to the hearing of this application. The tribunal does not place great weight on this, in the absence of an explanation by the author, the former husband of the respondent.

20 The tribunal accepted the evidence of Ms Yu, which he found was largely supported by the evidence of Mr Luo, and, in relation to the evidence of the plaintiffs, stated as follows:

The tribunal found their evidence unreliable, and influenced by a desire to recover losses from a failed investment venture, at the expense of their now estranged daughterinlaw. For these reasons, the tribunal dismisses the applicants' claim for $38,000.

21 The tribunal member dealt very briefly with the plaintiffs' claim for $1,600. He stated:[4]

On the balance of probabilities, the tribunal finds that the applicants have presented insufficient evidence of a probative nature to meet the threshold to prove that $1,600 was lent to Ms Yu. The tribunal has doubts to such a degree on the nature of the circumstances characterising the alleged loan of $1,600, as to find itself unable to accept the applicant's assertions on the balance of probabilities. It follows from that, that the claim in relation to $1,600 must be dismissed.

22 Following the ruling, the tribunal member heard and granted an application by Ms Yu that the sum of $3,000 be ordered against the plaintiffs in respect of costs.

23 On 2 December 2014 the tribunal member published written reasons for discussion ('reasons'). The reasons are more detailed and structured than the oral ruling. At paragraph 51 of the reasons, the tribunal member stated:

The Tribunal attributes significant importance to the documents Exhibits R1 and R2, Exhibit R1 is a Chinese Mandarin document dated 5 July 2012 with a heading in Mandarin stating, according to the translation, the equivalent of 'IOU'. The Tribunal accepts the evidence of Mr Chen Wei that Exhibit R2 is a faithful translation into English of the Chinese document, the veracity of the translation also being attested to, at the foot of the document, by the declaration of one Zhengran Zheo, professional translator. The Tribunal also accepts Mr Chen Wei's evidence that the Mandarin document is signed in Mandarin by Mr Wen Tao Wei. Both the veracity of the translation and the signature being that of Mr Wen Tao Wei were not in issue in the proceedings, being common ground between them.

24 The tribunal member later went into some detail regarding the failure of Mr Wei junior to attend to give evidence. The relevant paragraphs of the reasons are reproduced in full below:

The Tribunal accepts, especially where the accuracy of the translation is not itself in dispute, a plain and ordinary reading of the IOU letter, that the letter means what it says and that what it says is that Mr Wen Tao Wei acknowledges that $38,000 was borrowed by him from his parents. The Tribunal finds no basis for the proposition that the subsequent letter dated 2 August 2014, stating that Mr Wen Tao Wei is not the borrower, could be consistent with the language of the contemporaneous IOU letter signed on 5 July 2012. To the extent that the letter of 2 August 2014 was put in evidence, together with the testimony of Ms Xia and of Mr Chen Wei, seeking to contradict the plain language of the IOU, the Tribunal rejects that evidence.
The Tribunal also notes that the IOU letter was attached to the applicants' application to The Victorian Civil and Administrative Tribunal, but that the letter was not referred to by the applicants in their evidence. It was only raised and put into evidence during their respective cross examinations. The strict rules of evidence do not apply in the Victorian Civil and Administrative Tribunal jurisdiction nor are there formal pleadings. Also, the applicants were not represented or familiar with Tribunal procedure and did not speak English well or at all. Nevertheless, their failure to refer to the IOU letter in their respective evidence in chief appears to be at odds with their conviction that the IOU letter is itself proof that Mr Wen Tao Wei was not the borrower.
In all the circumstances, Mr Wen Tao Wei, the son of the applicants, the driving force in the purchase of the two units, 'separating' husband of Ms Yu and author of the IOU is a person central to the facts and circumstances surrounding the characterisation of the $60,000 and whether or not it might be regarded as a loan to the respondent. Mr Wen Tao Wei was not however called by the applicants to give evidence and no reason was advanced by Mr Chen Wei or Ms Xia for their son's failure to attend. The witness Mr Luo did give evidence that Mr Wen Tao Wei did not now like to see people and that he was told by the parents that he had a cold, at least on the first day of the hearing. Mr Wen Tao Wei also did not appear at the second day of the hearing conducted around 2 months later.
Mr Wen Tao Wei's evidence could have assisted the Tribunal in understanding important facts and circumstances concerning the purported loan of $60,000. His evidence could have shed light on why the IOU dated 5 July 2012 did not amount to an acknowledgement by him of a debt owing by him to his parents in the sum of $38,000. His evidence could also have explained how it could be that his later letter dated 2 August 2014, a few days before the hearing, denying he was the borrower could somehow be consistent with the earlier more contemporaneous IOU, as asserted by his father in evidence. The failure to call Mr Wen Tao Wei, apart from the generalised observations of Mr Luo, remains unexplained.
In these circumstances, the Tribunal is entitled to make an inference Jones v Dunkel ((1959) [1959] HCA 8; 101 CLR 298) and to infer that the direct evidence of Mr Wen Tao Wei and any evidence in respect of his contemporaneous IOU letter would not have assisted the applicants in their argument that a loan had been made to the respondent or in their interpretation of their son's IOU letter that it was proof of their being a loan to the respondent. For this additional reason, the Tribunal finds that there is substantial doubt concerning the evidence of the applicants as to their being a loan made to the respondent of which $38,000 is claimed as the outstanding balance.

25 The tribunal member had not referred to Jones v Dunkel[5]during the course of the VCAT hearing or in his oral reasons, although it was apparent from reviewing the transcript, at least to the legally trained reader, that the tribunal member was alert to the possibility that he might be called upon or decide to rely upon an inference of that kind. During the course of his crossexamination of Mr Wei, counsel for Ms Yu asked Mr Wei whether his son would be giving evidence that day. At first, Mr Wei said 'yes'. However, almost immediately after that answer, the following exchange took place between the tribunal member and Mr Wei:[6]

MEMBER: Is your son going to give evidence today? Is he attending the tribunal today?

MR WEI: (Direct) No.

MEMBER: Why is he not at the tribunal today?

MR WEI: He got a cold.

MEMBER: That is unfortunate. His evidence would be very important today.

26 Further, during the examination-in-chief of Mr Luo, the tribunal member had the following exchange with Mr Luo:[7]

MEMBER: Is Wentao Wei a friend of yours?

MR LUO: (Direct) Yes.

MEMBER: When did you see him last?

MR LUO: Probably half a year ago.

MEMBER: You haven't seen him for half a year?

MR LUO: Maybe not half a year, three or four months.

MEMBER: So he's not a very close friend?

MR LUO: No.

MEMBER: How do you know he has got a cold?

MR LUO: Sorry?

MEMBER: How do you know he has got a cold, he's feeling ill today?

MR LUO: (Indistinct.)

VOICE: (Indistinct.)

MEMBER: No, no, I'm asking (indistinct)?

MR LUO: From the parents.

MEMBER: When did they tell you that?

MR LUO: Because - - -

MEMBER: When did they tell you that?

MR LUO: Probably one month ago.

MEMBER: So he has had a cold for one month, has he?

MR LUO: Not have a cold, he just don't want to see anyone, just want to (indistinct).

MEMBER: His evidence would be very important today and the Tribunal can only note that absence.

MR LUO: (Through Interpreter) I didn't say he had a cold, he was very depressed, he was very low in the mood and then when I went to their place, and then he refused to see me and then he refused to see anyone.

27 In my view, in circumstances where the plaintiffs were self-represented, had a poor command of English, and were clearly emotionally invested in their claims against their former daughter-in-law, it was incumbent upon the tribunal member to explain in the clearest possible terms the possible (indeed likely) consequences of failing to call Mr Wei junior as a witness. The tribunal member's failure to do so was a vitiating error of law, whether it is characterised as a failure to afford natural justice, or a failure to provide adequate assistance to a self-represented litigant.

28 Senior counsel for the plaintiffs relied upon the decision of the Court of Appeal in Downes v Maxwell Richard Rhys & Co ('Downes').[8] In Downes, the Court of Appeal were asked to consider whether a trial judge's failure to give an express Jones v Dunkel warning in circumstances where the self-represented parties had elected not to give evidence (arguably at the invitation of the trial judge), but had chosen to rely upon their submissions alone, amounted to a breach of procedural fairness. The trial judge stated in his reasons that:

the manner in which the defendants conducted their case at trial meant that they put in no evidence in response to the plaintiffs' case at all. Insofar as their case was based upon assurances and representations allegedly made to one or other or both of the defendants, there would be every reason to expect that one or both of the defendants would have given evidence. It is reasonable to infer that, had they given evidence, their evidence would not have been helpful to the defendants' case.

Where the absent witness is the defendant, himself, or the defendants, themselves, the ability to draw inferences based upon other evidence is stronger.

29 In Downes, Osborn JA, who wrote the lead judgment, canvassed the principles applicable where selfrepresented litigants alleged a failure on the part of a court or tribunal to afford procedural fairness. The appellants in Downes alleged, among other things, that the trial judge did not explain to them, among other things, the possibility that if they did not give evidence, he would adopt Jones v Dunkel inferential reasoning as a basis for accepting the evidence of the witnesses called by the other party and the case of the other party. His Honour stated as follows:[9]

In my view, the submissions of the Downes as to Jones v Dunkel reasoning should be accepted. Whilst it is true that his Honour went to substantial lengths to emphasise the difference between submissions and evidence as the matter progressed before him, the distinction was not reiterated at the critical point where the Downes elected not to give evidence and the judge did not identify or explain the consequences that might follow in terms of Jones v Dunkel reasoning.

...

Unfortunately, his Honour's statement 'now you don't have to give evidence if you don't want to' effectively invited the Downes not to give evidence but to rely on their submissions alone. This course could not fairly be suggested without raising for the Downes the significant evidentiary problems which I have identified above and the concomitant possibility that the failure to call evidence might result in the judge adopting Jones v Dunkel inferential reasoning.

The course of the hearing which I have traversed in some detail raised the real possibility that the Downes believed that they had answered the case put against them by way of crossexamination and submission, and that in consequence, their own advocacy had in effect obfuscated the underlying evidentiary realities. In my view, the judge was bound to reiterate that the Downes had arrived at the point where they could seek to answer by evidence, the documentary evidence upon which Rhys relied and the evidence of Mr Curran, and could seek to make out the defence of misrepresentation which had been pleaded on their behalf, and verify the narrative put forward in opening the defence case. Further, it was necessary in this context to specifically foreshadow the possibility of the operation of Jones v Dunkel reasoning if they gave no evidence.

30 In my view, the remarks of Whelan JA in a short concurring judgment are relevant to the issues in this proceeding:

However, notwithstanding the judge's commendable efforts to ensure that the defendants were able to understand the process and make informed decisions, ground 1 concerning the judge's failure to warn them of the potential application of Jones v Dunkel must be upheld for the reasons given by Osborn JA. The defendants could not have known of, or anticipated, the application of those principles. Clearly, that possibility was relevant to their decision as to whether to give evidence. The judge then did apply those principles to the detriment of the defendants in his judgment.

31 Of course, it is trite law that the content of the rules of natural justice may vary according to the circumstances of the particular case.[10] In the current case, the tribunal member did take pains to explain the procedure at VCAT. But it is clear from the transcript that the plaintiffs' comprehension of what was required of them was extremely limited, and indeed, the tribunal member was clearly alert to the disadvantages under which the plaintiffs laboured.[11] While the tribunal member queried the whereabouts of Mr Wei junior, and observed that his evidence would be 'very important' on two occasions during the hearing on 7 August 2014, the plaintiffs ought to have been informed in the clearest possible terms, perhaps at the close of the hearing on the first day, that if they did not call their son to give evidence, the tribunal member might well disregard the 2 August 2014 letter, and draw the inference that Mr Wei junior's evidence would not assist the plaintiffs, particularly given the terms of the IOU letter.

32 The reasoning in Downes was considered and applied by Croft J in Comaz (Aust) Pty Ltd v Commissioner of State Revenue[12] ('Comaz'), also an appeal from VCAT. As in the current case, the tribunal member made certain observations during the course of the hearing regarding the significance of the evidence which might be called from an absent witness, but failed to give an express Jones v Dunkel warning to the lay people representing the company. Croft J referred to the passages of Downes referred to in these reasons, and went on to say:

As these extracts taken from Downes indicate, the trial judge in that case clearly went to some lengths to offer assistance, where appropriate and as far as possible, in recognition of the fact that the defendants were unrepresented. Despite the efforts to which the trial judge went, the failure to provide a warning regarding the effect of a Jones v Dunkel inference was an oversight which tainted the whole proceeding by failing to provide procedural fairness, an oversight which could not be overcome despite the best efforts of the trial judge in other aspects of the trial. The decision also provides a clear articulation of the important role the application of the rule in Jones v Dunkel plays in adversarial litigation, as well as the steps which a court and, in my view, a tribunal must take to assist an unrepresented party gain an understanding of the application of this rule and the potentially adverse consequences of its application. I will return to this issue of the appropriate limits to a court or tribunal's assistance to unrepresented parties shortly.[13]

33 Croft J clearly considered that the failure of the tribunal member to give an express Jones v Dunkel warning was a procedural defect almost incapable of cure. Of course, there may well be circumstances where that is not the case, but there are some useful parallels in the current case with the hearing the subject of the appeal before Croft J, in that issues of credit were at the forefront from the outset. Furthermore, in Comaz (and Downes as well) while the parties or their representatives were not legally qualified, it appears from the discussions in those judgments that the unrepresented parties were at least fluent in English and had some experience in commercial and financial matters. While there is no evidence one way or the other about the commercial experience of the plaintiffs in this proceeding, their lack of English proficiency is obvious, as is their lack of understanding of the legal process.

34 I have some sympathy for the submissions made on behalf of Ms Yu to the effect that, reading the transcript and reasons as a whole, the plaintiffs were accorded a fair trial, and should not be allowed to have another trial when their evidence below was disbelieved. However, it is clear from the reasons of the Court of Appeal in Downes, as elaborated upon by Croft J in Comaz, that the significance and consequences of Jones v Dunkel inferential reasoning means that where such reasoning is deployed adversely to an unrepresented party, that should only be usually be after that party has had fair warning of its possible deployment.

35 Counsel for Ms Yu submitted that it ought to have been self-evident to the plaintiffs that the evidence of Mr Wei junior was important, based upon the observations of the tribunal member on the first day of the hearing. I disagree, particularly given the relatively brief and enigmatic nature of the tribunal member's observations, and the obvious disadvantages the plaintiffs were labouring under.

36 I note that during the course of the hearing before me I raised the issue of whether, given that the threshold question of whether leave ought to be granted was yet to be determined, the affidavit evidence relied upon by the plaintiffs was sufficient for me to conclude that any error on the tribunal member would cause substantial injustice if allowed to remain uncorrected. In particular, I gave some consideration to whether the evidence of the plaintiffs needed to go further than simply identifying the absence of an express Jones v Dunkel warning being given by the tribunal member, but rather, the evidence in support of the application for leave to appeal ought to go into some detail about what the plaintiffs would have done differently had the Jones v Dunkel warning been given, including what evidence Mr Wei junior would have given had he had been requested to give evidence, and actually attended to give evidence, noting there might be some doubt about whether he actually would attend even if requested to do so, and there also might have been some doubts about the willingness of the plaintiffs to compel him to do so. Counsel for Ms Yu submitted that there was a 'whopping gap' in the evidence of the plaintiffs in that regard.

37 Further, the dispute between the parties before the tribunal member was essentially a factual dispute, and the tribunal member preferred not only the evidence of Ms Na, but also found that her evidence was largely corroborated by the evidence of Mr Luo. However, I accept that one might readily conclude that an error of law might result in a substantial injustice if uncorrected will be more readily discernible if the order appealed from is a final order.[14] Further, the following matters cause me to draw the inference that the plaintiffs may suffer an injustice if leave were not granted:

(a) the tribunal member's statements during the course of the hearing, his oral ruling, and the reasons regarding the significance of the IOU document, Mr Wei junior's role generally, and the importance of his evidence to the plaintiffs' case;

(b) the plaintiffs' case, based upon objective facts not in dispute, does not appear to be hopeless. The funds were paid into Ms Yu's account, and they were used to settle the sale of two properties of which Ms Yu, not Mr Wei junior, was the nominated purchaser. Some funds were repaid by Ms Yu, allegedly upon Mr Wei junior's instructions, albeit on a date after Ms Yu and Mr Wei junior separated;

(c) the apparent lack of understanding upon the part of the plaintiffs regarding what was expected and required in order to make good their claims. Their lack of experience and expertise was compounded by their lack of emotional detachment, as evidenced by their conduct and statements during the VCAT hearing, and the florid criticisms of the tribunal member in the originating documents filed in this proceeding; and

(d) the description by the tribunal member of the contents of the 2 August 2014 letter provides an indication of what evidence would have been given by Mr Wei junior had he attended the tribunal hearing, which might well make a difference to the outcome of the case. Whether that evidence would have survived unscathed following crossexamination may well be in doubt, but that will need to be determined elsewhere and at another time.

38 Given my findings regarding the consequences of the tribunal member's failure to provide a clear and express Jones v Dunkel warning, it is not strictly necessary for me to consider the other grounds of appeal relied upon by the plaintiff, save to say that I doubt that few if any of them would warrant a grant of leave, let alone be made out on appeal. However, I will make some observations on the other 'main points' referred to by senior counsel for the plaintiffs in his oral submissions.

39 As noted above, the Notice of Appeal is an extensive document, and a number of different grounds of appeal were relied upon by the plaintiffs. However, in his oral submissions, senior counsel for the plaintiffs, while not resiling from the detailed written submissions filed on their behalf, focussed upon four 'high points', the first being the tribunal member's failure to give an express Jones v Dunkel warning, as discussed above. The other remaining matters relied upon by the plaintiffs included:

(a) the tribunal member's refusal to allow the plaintiffs to have legal representation at the VCAT hearing;

(b) the question of whether the tribunal member's direction to the plaintiffs to sit at the back of the hearing room for a period of time created an apprehension of bias; and

(c) the failure of the tribunal member to provide the necessary assistance to conduct their case. In particular, it was submitted that the tribunal member failed to accord the plaintiffs procedural fairness in the management of the witness Mr Luo (including ordering the plaintiffs to the back of the court room during crossexamination), the tribunal member interfered with and interrupted the crossexamination of Ms Yu, and the tribunal member refused to allow the plaintiffs to make closing submissions.

40 In relation to (a) above, the plaintiffs submitted that the following exchange between Ms Xia and the tribunal member in the latter part of the first day of hearing as amounting to either a breach of procedural fairness, or conduct which would cause a fair minded observer to conclude that the tribunal member would not bring an impartial and unprejudiced mind to the resolution of the dispute.[15]

MS XIA: (Through Interpreter): I feel it's like a - like a (indistinct). We are aged people and we are here but she has a lawyer and that we were not able - we are not able to put questions directly to her. When she had - she has hired a lawyer. We wanted to hire lawyer, took, but when we came here we were told that there was no need. There was no lawyer available.

MEMBER: All right.

MS XIA: This not fair to us.

MEMBER: I addressed the procedure in detail this morning before we commenced this trial. I addressed the conduct of the matter and, after giving express - after giving quite a detailed description of how this matter was going to be run, I asked if you had any questions. I asked you both and you had no questions. You at all times have had the opportunity to pay for a barrister or a solicitor but clearly you have elected not to do so.

MX XIA: We didn't know that we could hire lawyer. We did come here. We did try - we made - we did make the enquiry, put forward an enquiry and then we were told it was no need and that there was lawyer available here.

MEMBER: Well, that is a matter for you. You've made your election. We are now halfway through the case. We cannot go backwards. These things were clearly explained to you. Please.

41 I accept the submission advanced on the part of Ms Yu that the evidence of the plaintiffs that, first, they did not retain a lawyer because someone at VCAT had told them that VCAT has lawyers, and that they did not know they could hire a lawyer is somewhat incredible, and inconsistent with their conduct at the hearing. Even if they were under this misapprehension at the commencement of the proceeding, it must have been obvious to them after Mr Selimi was granted leave to appear on behalf of Ms Yu that they would also be entitled to obtain legal representation. There may have been cost consequences in doing so, as that would have necessitated an adjournment of the hearing, but I do not consider that the tribunal member's failure to expressly inform the plaintiffs of their rights to obtain legal representation, at the commencement of the hearing, or when the issue was raised by Ms Xia on 7 August 2014 amounted to a failure to afford the plaintiffs procedural fairness. After all, they had ample time to engage a lawyer between the end of the first hearing day and the resumption of the hearing some two months later.

42 Similarly, I agree with the submission made on behalf of Ms Yu that the tribunal member's direction to the plaintiffs to sit at the back of the hearing room during the crossexamination of Mr Luo could not amount to a breach of procedural fairness or given rise to an apprehension of bias. Indeed, given the uncontested evidence of Ms Yu that the plaintiffs were attempting to coach Mr Luo (in Mandarin), it would have been grossly unfair to Ms Yu had the tribunal member not intervened.

43 Finally, senior counsel for the plaintiffs submitted that the following conduct evidence a lack of procedural fairness on the part of the tribunal member:

(a) he interrupted and denied the applicants a reasonable opportunity to examine in chief their witness Mr Luo;

(b) he interrupted and denied the applicants a reasonable opportunity to crossexamine the respondent Ms Yu;

(c) he denied the applicants' requests to tender further evidence; and

(d) he denied the applicants' request to make closing submissions.

44 In their written outline of submissions, counsel for the plaintiffs submitted that the tribunal member's repeated interruptions of the applicants, his refusal to allow the applicants to question witnesses and refusal to accept closing submissions from the applicants are each a breach of the tribunal member's obligation to afford the plaintiffs procedural fairness. They submitted that, separately and in combination, this is conduct that if witnessed by any fair-minded lay observer, would reasonably lead that observer to apprehend that the tribunal member might not bring an impartial and unprejudiced mind to the resolution of the dispute.

45 While I accept that in some circumstances the intervention of a judicial officer in a party's presentation of its case, and a refusal to accept submissions or further submissions might amount to a denial of procedural fairness, especially when that party is self-represented, a fair review of the transcript as a whole does not lead me to draw such a conclusion in the current case. The tribunal member did intervene in the examination in chief of Mr Luo. However, the questions posed by the tribunal member appeared to have been directed at eliciting Mr Luo's evidence in a logical sequence, and he was not questioned in a manner which in any way seemed to be in any way prejudicial to the plaintiffs. I have already commented upon the tribunal member's direction to the plaintiffs to remove themselves to the rear of the hearing room. While that may have hampered their ability to object to counsel's crossexamination, it does not seem to me that the crossexamination of Mr Luo was objectionable. Furthermore, the tribunal member expressly told the plaintiffs that they would have the opportunity to re-examine Mr Leo when the hearing resumed: for whatever reason, he did not attend for reexamination on the next hearing date.

46 As for the interruption of the crossexamination of Ms Yu, it seems that the tribunal member intervened when he considered the plaintiffs or either of them to be unfairly badgering Ms Yu. One must be cautious to unduly criticise a judicial officer in the manner in which he or she controls the court room, particularly in emotionally charged circumstances. The fact that others might have managed things differently cannot, of itself, amount to an error of law.

47 The same could be said for the tribunal member's refusal to allow the plaintiffs to produce additional evidence, or make additional submissions, in the form of the statement which is exhibit 'CW-6' to the affidavit of Chen Wei affirmed on 2 March 2015. Refusing to allow a party the opportunity to make submissions might often lead to a finding that there has been a failure to afford procedural fairness. However, upon reviewing the statement, it does no more than restate in written form the evidence already given in oral form, including the circumstances in which the plaintiffs requested Mr Wei junior to create the IOU document. The point goes nowhere.

48 Finally, for completeness, while these purported questions of law were not the subject of oral submissions by senior counsel for the plaintiffs, the written submissions relied upon by the plaintiffs did refer to alleged errors of law based upon the tribunal member failing to take into account relevant considerations, and taking into account irrelevant considerations. Taking the latter question first, the plaintiffs submit that the tribunal erred in law by taking into account the post contractual conduct of Mr Wei junior, being his creation of the IOU document and the 2 August 2014 letter in order to construe the terms of the May 2012 oral agreement.

49 In my view, the plaintiffs' submissions misconstrue what use the tribunal member made of these documents. It is correct that he attributed 'significant importance' to these documents. However, he did not rely upon those documents to construe the terms of the alleged agreement between the plaintiffs and Ms Yu. Rather, he relied upon the inconsistencies between these documents, the plaintiffs' refusal to accept the inconsistencies between these documents, along with the failure of Mr Wei junior to attend to give evidence as the basis upon which he rejected the plaintiffs' evidence that they had entered into an agreement with Ms Yu to lend her $60,000 in May 2012.

50 As for the contention that the tribunal member failed to take into account relevant considerations, it is apparent from the contents of the plaintiffs' written submissions that the plaintiffs are attempting to amount an impermissible attack on the factual findings of the tribunal member.

51 Accordingly, having found that the tribunal member's failure to give the plaintiffs an express Jones v Dunkel warning amounted to a breach of procedural fairness, which may have affected the ultimate outcome of the plaintiffs' claims at the VCAT hearing, I will grant leave to appeal, and allow the appeal. I will hear further from counsel on the appropriate form of order and the question of costs.

[2] Paragraph 14 of the affidavit of Na Yu affirmed on 1 April 2015.

[10] Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & ors [2014] VSC 619 [124].

[11] For example, when Ms Xia was being cross-examined by counsel for Ms Yu about the difference between a gift and a loan, the tribunal member stated: 'Mr Selimi, this is in a contextual matter and we are traversing across a very difficult language barrier here.'

[14] Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 336-337.

Civil and Administrative Tribunal (VCAT)_ Act 1998(Vic)

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

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Legislation Cited (1)

Cases Cited (2)