Sherman v Watson [2003] VSCA 70

5. On 20 August 2002 the appellant filed an originating motion in the Trial Division seeking leave to appeal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). He sought leave to appeal from the order of dismissal and the order awarding costs. He did not, however, seek to join the solicitor, Joseph Rose. On 15 October 2002 the application was heard by a Master and dismissed with costs.

8. On 24 October 2002 the appellant filed notice of appeal and on 11 November 2002 a judge in the Practice Court, bypassing the difficulty that the notice of appeal was taken out of time, considered the merits and dismissed the appeal on the merits. Again it was dismissed with costs.

11. On 25 November 2002 the appellant filed a summons seeking leave to appeal to the Court of Appeal under s.17A(4)(b) of the Supreme Court Act 1986 from the orders made in the Practice Court on 11 November. The Court as presently constituted heard the application on 16 December 2002 and granted leave to appeal. The reasons then given set out sufficiently for present purposes the background to this proceeding, although Mr. Sherman, who appears today to prosecute the appeal in person, points out that the background facts retailed in those reasons were not necessarily accepted by him and were, to some extent at least, the subject of continuing dispute. That does not matter for present purposes. We have before us now the appeal for determination.

14. Mr. Sherman argues that the hearing and determination of the Tribunal on 20 May 2002 was flawed by error in a number of respects. He contends, too, that those errors raise questions of law because the appeal to the Trial Division which he seeks to mount is allowed under s.148 of the VCAT Act only on a question of law. The respondent's outline of submission very helpfully addresses the points taken, and Ms Knights, who appears for the respondent, submitted that we should not allow the appeal. There was no sufficient basis, she said, for allowing the appeal and ordering that leave to appeal be given under s.148 of the VCAT Act. Indeed, the point is taken on behalf of the respondent that the Fair Trading Act did not confer jurisdiction upon the Tribunal to hear and determine the appellant's claim in any event.

17. In essence, the appellant's case of error in the Tribunal turns now, as I apprehend it, upon three main points. The first is that the Tribunal failed properly to hear the appellant and thereby failed to accord him natural justice, and on that account failed to exercise its jurisdiction properly or at all. The second point which the appellant now seeks to take, by reference to an affidavit recently filed by him and headed "Seventh Affidavit in Support", is that the Tribunal was not at the time properly constituted because the Member purporting to constitute the Tribunal was not qualified to do so. As explained to us, the point is that, Ms McBride no longer held a current practising certificate and that, it is submitted, disqualified her from acting in the matter. The third point concerns the summons to produce documents directed to Mr. Rose. In his outline of submissions in reply, Mr. Sherman went so far as to suggest that, at the hearing, no objection to the production of files had been taken by Mr. Rose; but quite plainly, by reference to the transcript, that was not so. Mr. Sherman says, too, that Mr. Rose never acted as solicitor for the respondent in her matrimonial dispute, but, whether or not that was so, it seems, on the material we have at all events, that Mr. Rose did act for the respondent in relation to some legal dispute following the matrimonial dispute. The matter of the subpoena may be relevant because Mr. Sherman's application to the Tribunal was dismissed on 20 May 2002, in part at least because the Tribunal was not satisfied that the claim was established, it being said that the appellant had failed to produce any documents in support of his claim.

20. When this appeal was called on for hearing this afternoon, the only question for us on the appeal seemed to be this: whether on 11 November 2002 the judge in the Practice Court should (on appeal from the Master) have granted leave to appeal from the Tribunal to the Trial Division. However, not long into the hearing, Ms Knights made a concession which was very valuable to Mr. Sherman. On behalf of the respondent Ms Knights said that, if we were to come to the conclusion on the material now before us that there had been error by the judge and that leave to appeal ought to be granted with the result that the matter must go back to the Trial Division for the hearing of an appeal from the Tribunal, the respondent was prepared to have the appeal heard instanter and allowed. In other words, rather than see the matter simply return to the Trial Division for the hearing and determination of an appeal from the Tribunal with the further expense that that would entail, the matter should be disposed of now once and for all by this Court standing in the shoes, as it were, of the Trial Division and the appellant's application remitted to the Tribunal for further hearing. Subsequently, Ms Knights elaborated a little further. She said that the respondent was prepared to concede, for the purposes of this proceeding only, that a denial of natural justice by the Tribunal would constitute an error of law sufficient to ground an appeal under s.148. That, too, was a significant concession.

23. In my opinion, having considered the material that is before us in the appeal book, there was a denial of natural justice in the course of the hearing before the Tribunal and to my mind that point is not merely arguable; it is established. Looking at the transcript, it seems to me apparent that, for whatever cause, the Member who constituted the Tribunal did not allow Mr. Sherman fully or fairly to present his own case. It must be accepted that there are always difficulties when matters are brought on, whether before tribunal or court, for prosecution by litigants in person: but none the less it seems to me that it can fairly be concluded in this case that the Tribunal, for whatever reason, did fail properly to exercise its jurisdiction. On that basis (though subject to what I shall say shortly), given the concessions that have been made - and very helpfully made, if I may say so, by Ms Knights - it follows that there is ground for us not merely to allow the appeal from the Trial Division and to grant leave to appeal, but also to proceed further and to allow the appeal that the appellant would wish to bring from the Tribunal to the Trial Division, in the final result remitting the appellant's original application to the Tribunal for further hearing and determination.

26. That is not, however, the end of the matter, although it does save us dealing with two of the three points raised by Mr. Sherman. (The point concerning the subpoena need not be addressed and the point he raises concerning the constitution of the Tribunal by Ms McBride no longer matters, given that if the matter is remitted it should be heard and determined by a Tribunal differently constituted.) It is not the end of the matter because we must also deal with two other points taken by Ms Knights in her submission that we should not follow the course I have just adumbrated.

29. The first is that to remit the matter to the Tribunal for further hearing and determination would be perfectly futile. Ms Knights contends that, no matter how the matter is approached, at the end of the day it was proper for the Tribunal to conclude that Mr. Sherman simply cannot prove his case. As she points out, if one adds in the substantial sum already received by Mr. Sherman for his services to the respondent, he is in truth seeking something in the order of $17,000 for work in respect of which no documents at all were produced to the Tribunal. But it is difficult to arrive at that conclusion with any confidence on a reading of the material before us if the hearing before the Tribunal was not conducted properly. At the end of the day it may be that what Ms Knights submits turns out to be perfectly correct. Suffice it to say, in answer to her submission, that I cannot be confident that that will be so on the material now available.

32. The other matter raised by counsel was the jurisdiction of the Tribunal under the Fair Trading Act, and this perhaps poses greater difficulty. Ms Knights says it is clear that Mr. Sherman was pursuing his claim under the Fair Trading Act. Her point is that once the hearing commenced it became plain that it could not properly be regarded as a claim under that Act since it was merely for non-payment for services rendered. Ms Knights contends that, although s.107 of the Act is drawn perfectly generally so that, in terms at least, it appears to encompass a dispute arising between a purchaser of services and a supplier of services in relation to the supply of services, the Act as a whole should properly be seen as consumer legislation enacted for the benefit of consumers and not for the benefit of traders. Counsel points to amendments which have since been made to the Act in that regard.

35. Now, it may be that the point raised by Ms Knights deserves more attention: certainly it is a point which is not easily resolved this afternoon. Obviously, if correct, it may have far-reaching consequences, although Ms Knights, despite her researches, has been unable to find any case touching upon the correctness of her submission or otherwise. Having given the matter some thought, it seems to me that if the point is live, as counsel submits, it should properly be determined first in the Trial Division. It is not appropriate, I think, for an appellate court to embark upon such a question at first instance, as it were. We commonly derive great benefit from the previous exploration of the issues in the Trial Division.

38. It follows, in my opinion, that in the particular circumstances of this case we should either remit the matter for hearing and determination in the Trial Division (and that would involve our granting leave to Mr. Sherman to commence his appeal in the Trial Division) or we should leave it to the Tribunal to embark upon the issue, if and when raised, when the matter is remitted to it for further hearing and determination. Ms Knights has offered the latter course in all other respects, and although she has invited us to determine the question of jurisdiction under the Fair Trading Act, for myself I would decline to accept the invitation and accordingly would deal with the matter as already suggested in light of the concessions made. In saying that, I have in mind that the point, if it is a good one, is not lost to the respondent. It can be taken again before the Tribunal. It can be explored before the Tribunal if it proves appropriate. And if the matter is heard and determined by the Tribunal, it could be explored in the Trial Division on any further appeal promoted in relation to the new decision. In saying what I have, I do not mean to pre-judge the ambit of the Fair Trading Act in any way at all.

41. For those reasons I would allow the appeal. I would set aside paragraphs 1 and 2 of the orders made in the Practice Court on 11 November, that is, the order dismissing the appeal and the order for costs, and I would in lieu order that the appeal be allowed and leave be granted to the appellant Sherman to appeal from the orders made by the Victorian Civil and Administrative Tribunal on 20 May 2002. I would then order that the proposed appeal from the Tribunal be taken to be instituted and heard instanter and allowed, setting aside the orders made by the Tribunal and remitting the appellant's original application to the Tribunal for further hearing and determination by a Tribunal differently constituted.

53. Ms Knights has drawn attention to a couple of matters which deserve mention. The Court has decided, for the reasons given, to allow the appeal from the Trial Division to this Court and to allow instanter the proposed appeal to the Trial Division from the Tribunal; and then, by making orders that the judge might have made, remitting the appellant's original application for further hearing and determination by the Tribunal. In giving reasons, I spoke of setting aside the orders made by the Tribunal on 20 May 2002. Ms Knights points out two things: first, that paragraph 1 of those orders is simply a direction for amendment. Counsel was right in supposing that we did not intend to set aside paragraph 1. Ms Knights also points to paragraph 3, which was an order that the applicant pay the costs of Mr. Rose in the sum of $930, Mr. Rose being, it will be recalled, the solicitor whom the appellant had summonsed to produce documents. His claim for legal professional privilege was upheld by the Tribunal and accordingly he was excused from attendance and the documents were not produced. That may be a ground for complaint about the conduct of the Tribunal, but Mr. Sherman sought to appeal against the order for costs made in Mr. Rose's favour. It is important to note, however, that Mr. Rose has never been joined as a party to this proceeding in the Supreme Court. We have not heard from Mr. Rose, and in those circumstances it would be quite wrong for us to set aside the order made in his favour in the sum of $930. Ms Knights suggested that on that account we did not intend to set aside paragraph 3, and so much must be accepted. Mr. Sherman does not make any submission to the contrary. Accordingly in granting the appellant leave to appeal from the Tribunal, that leave must be limited to paragraph 2 of the orders made by the Tribunal on 22 May.

56. Accordingly, for these and the reasons earlier given, the Court now makes the following orders:

1. The appeal from the orders made in the Practice Court on 11 November 2002 is allowed and the orders made then (both paragraphs 1 and 2) are set aside.

2. In lieu, it is ordered that the appeal from the Master be allowed and that, in lieu of the orders made by the Master, the appellant, Mr. Sherman, have leave to appeal from paragraph 2 of the orders made by the Victorian Civil and Administrative Tribunal on 20 May 2002.

3. It is further ordered in lieu that that appeal by Mr. Sherman be taken as instituted and heard instanter and allowed.

4. It is further ordered in lieu that paragraph 2 of the orders made by the Tribunal on 20 May 2002 be set aside and that the proceeding in the Tribunal commenced by Mr. Sherman be remitted to the Tribunal differently constituted for further hearing and determination according to law.

63. If neither of the parties wishes to make any further submission as to the form of those orders we can move to the question of costs.

71. Costs should, it seems, follow the event. Ms Knights, you want a certificate, do you? That is something that can be dealt with administratively. It is not a judicial function as such. We will grant you a certificate here for the costs of the appeal and the costs you have to pay Mr. Sherman, but we are uncertain as to whether you should have a certificate in the Trial Division. Obviously you must now be seen as the respondent to a successful appeal to the Trial Division but we are uncertain whether the statute extends to a case such as this.

76. Very well, on that basis the Court adds to the orders already made:

The appeal from the Trial Division to the Court of Appeal is allowed with costs.

We grant the respondent a certificate under the Appeal Costs Act in respect of the costs of the appeal both of the respondent and the costs which the respondent is ordered to pay.

In respect of the substituted orders made in lieu of those made in the Trial Division on 11 November 2002, the appeal to the Judge from the Master is allowed and leave to appeal is granted. The costs of Mr. Sherman's application for leave to appeal are to be costs in the appeal from the Tribunal and then the appeal from the Tribunal to the Trial Division is allowed with costs.

The question whether in the somewhat unusual circumstances of this case a certificate should be granted to Ms Watson as the unsuccessful respondent to an appeal to the Trial Division is yet to be resolved. If necessary, we grant liberty to the respondent to make application administratively to this Court.