Court of Appeal (Vic)|2011-05-06|Before: Tate JA

Spilkin v Rosenberg [2011] VSCA 128 (6 May 2011)

Spilkin v Rosenberg (Unreported, Victorian Civil and Administrative Tribunal, Vice-President Judge Hampel, 29 March 2011)

1 This proceeding is an application by Mr Spilkin ('the applicant') for leave to appeal, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act'), from the orders of her Honour Judge Hampel, Vice-President of the Victorian Civil and Administrative Tribunal, made on 29 March 2011. The application is opposed by Mr John Rosenberg ('the respondent') who is the landlord of 2/2A Stone St, Brighton East ('the property'), of which the applicant is the tenant. The proceeding arises out of a tenancy dispute between the applicant and respondent.

2 On December 13 2010, the respondent applied to VCAT for an order for possession of the property, pursuant to the Residential Tenancies Act 1997, and payment of the outstanding rent. The applicant was two months in arrears.

3 Three hearing dates were listed between 15 December 2010 and 10 January 2011. Each of these hearings was adjourned at the applicant's request. He remained in possession of the property and no rent payments were made.

4 The matter was listed for hearing on 21 January 2011. The applicant applied unsuccessfully to again adjourn the hearing. At the hearing, the tribunal ordered the applicant to pay the outstanding rent of $6,929.51 by 27 January 2011, to pay next month's rent of $2,708 on 1 February 2011 and thereafter to resume paying rent in advance.

5 The applicant provided a cheque for the outstanding rent. This cheque was not honoured. The matter was listed for a renewal of proceedings on 10 February 2011. The applicant again applied for an adjournment. This application was refused. The applicant did not appear at the hearing. In his absence, orders were made for possession and payment of the outstanding rent. An explanation for this was proffered by the applicant at the hearing of the application for leave to appeal today, namely, that he believed he had made an agreement with the respondent and that this would be accepted by the tribunal. There was thus no need for him to attend. No adverse inference should be drawn from his absence and I draw no adverse inference. I consider that Judge Hampel drew no such adverse inference.

6 On 11 February 2011, the parties agreed that the applicant could stay in possession provided he would pay the rent in agreed instalments. After this agreement was reached, the applicant sought a review of the decision made on 10 February 2011.

7 On 21 February, the application for review was granted, and the matter was reheard on the same day. The tribunal again made orders for possession and payment of outstanding rent in the sum of $10,060.39. Another agreement was reached between the parties that the applicant could remain in possession and pay the outstanding rent in instalments.

8 There is a dispute about the terms of the agreement. The respondent's agent claims the applicant was to pay $4,500 immediately and the balance by 28 February. The applicant claims he was to make a payment of $4,500 and then to repay the balance in accordance with the instalment plan agreed on 11 February.

9 There is no dispute that the applicant has paid the respondent $2,500 of the agreed $4,500 first instalment.

10 According to VCAT records, the respondent's agent applied for a warrant of possession of the property at 5.33pm on 21 February. VCAT issued a warrant for possession on or about 25 February.

11 There is a dispute between the parties about whether the respondent agreed not to apply for a warrant of possession or agreed not to execute it. The applicant alleges that the issue of the warrant breached the agreement of 21 February. The respondent alleges that the failure to pay the outstanding rent in accordance with the agreement breached the agreement of 21 February.

12 By 25 February 2011, the applicant had completed filing an application in the Supreme Court for judicial review of the decision. On the same day, VCAT granted a stay of the orders of 21 February (the orders for possession and payment of outstanding rent) and a stay of the execution of the warrant pending a determination of the Supreme Court application.

13 On 28 February, Mahony AsJ dismissed the application for review. At the hearing today the applicant explained that he had sought judicial review in the Supreme Court without fully understanding what was involved. No adverse inference is to be drawn from the fact that the applicant applied for judicial review or from the fact the application was dismissed. I draw no adverse inference and I consider that Judge Hampel drew no such adverse inference.

14 On 28 February the applicant also applied to VCAT for a restraining order preventing the police from executing the warrant. An ex parte order was made, restraining the parties from enforcing any of the orders made on 21 February, including the execution of the warrant, until the hearing of the application for a restraining order.

15 The hearing commenced on 7 March 2011 before Member Barker constituting the tribunal. The applicant was unrepresented, the respondent was represented by solicitor and counsel. At the start of the hearing the applicant was asked if he objected to the respondent being legally represented. The applicant did not object but rather stated words to the effect 'they can bring on as many lawyers as they like'. He later recognised that this had been a mistake on his part and during the hearing he asked for the legal representatives to be removed. He stated that he thought he was consenting to the legal representatives being present to advise the respondent, not to speak on the respondent's behalf. He stated that it was unfair that he was unrepresented.

16 The tribunal arranged for the applicant to consult with a solicitor at Victoria Legal Aid by telephone, but did not remove the respondent's legal representatives. The tribunal adjourned the hearing until 2.00pm the following day to allow the applicant to obtain further legal advice. The tribunal refused the applicant's request for an adjournment until 10 or 11 March, dates on which the applicant said his legal adviser would be available. The tribunal specifically left open the applicant's right to make a further application at the resumed hearing to disallow the respondent's legal representatives, or for a further adjournment.

17 When the hearing resumed the following afternoon, the tribunal refused the applicant's application to remove the respondent's legal representation from the hearing, and refused a further request by the applicant for an adjournment.

18 The applicant then applied for the tribunal to be reconstituted, pursuant to s 108(1) of the VCAT Act. He submitted that the refusal of the tribunal member to disallow the respondent's legal representatives, and the refusal of the tribunal member to grant an additional adjournment was unfair.

(1) At any time during the hearing of a proceeding a party may apply to the Tribunal requesting that it be reconstituted for the purposes of the proceeding.

(2) At any time during the hearing of a proceeding, the President or a member of the Tribunal may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(3) On application under subsection (1), or after notice is given under subsection (2) -

(a) the Tribunal, as presently constituted, after allowing the parties to make submissions, may decide that it should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

(4) If the Tribunal rejects an application under subsection (1) for reconstitution, a party may make a request to the President that the Tribunal be reconstituted.

(5) If a request is made to the President under subsection (4), the President may allow or reject the request for reconstitution, with or without allowing the parties to make written or oral submissions.

(6) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

20 The tribunal, as constituted, considered the application in accordance with s 108(3) of the VCAT Act and rejected it. The applicant then sought to make a request to the President of VCAT that the tribunal be reconstituted. The applicant explained today that the tribunal, after it rejected the application for reconstitution, had sought information as to whether the applicant could make a further application for reconstitution and provided the applicant with this information. The tribunal had thereby assisted the applicant.

21 The tribunal, pursuant to s 108(4) of the VCAT Act, referred the matter to the President. Pursuant to s 33 of the VCAT Act, the President delegated his powers under s 108(4) to a Vice President, Judge Hampel.

22 The application for reconstitution was heard on 24 March 2011. The applicant submitted that he had been denied procedural fairness and natural justice by Member Barker, as a result of her refusal to disallow the respondent legal representation at the hearing, and her refusal to adjourn the hearing to a date on which the applicant could be legally represented.

23 The applicant contended that Member Barker had treated him in a different manner, compared with the way she had treated the respondent's counsel and the respondent's witnesses. For example, and this is only one example, during the hearing, the respondent's agent, Mr Ross, described the applicant as being 'lower than that', indicating a level somewhere below the bar table. The applicant was concerned that Member Barker failed to admonish Mr Ross for this statement. By contrast, when the applicant stated 'it's a lie' in response to a statement made by the respondent's counsel with which the applicant disagreed, the applicant was rebuked by Member Barker.

24 The applicant was of the opinion that Member Barker did not like him. She told the applicant he was raising his voice, and he felt that she was rushing him and cutting him short, while allowing the respondent's counsel to speak without being rushed.

25 The applicant also discovered that a witness he had called, Mr Michael Mastromauro, was a friend of the husband of Member Barker. The applicant had called this witness to corroborate his own account of the agreement reached between the applicant and the respondent on 21 February.

26 On 29 March 2011, Judge Hampel refused the application for reconstitution.

27 On that day the warrant for possession was extended, and it was further extended on 21 April 2011 until 27 May 2011. On 21 April 2011 the Senior Member of VCAT also ordered that the respondent by himself or his agents are prohibited from enforcing the warrant of possession, subject to any other order of the tribunal or the Supreme Court.

Judge Hampel's Dismissal of the Application for Reconstitution

28 Having regard to the applicant's submission that Member Barker's decision not to remove the respondent's legal representatives from the proceedings, and her refusal to adjourn the proceedings until the applicant's legal representative was available, Judge Hampel considered these matters to be properly characterised as complaints about adverse rulings. As such, they were not a proper basis for reconstitution. Her Honour cited the reasons of Kellam P in Metrospan Developments v Whitehorse City Council,[1] who stated that while s 108 of the VCAT Act conferred a broad discretion to order reconstitution, it must be used for proper means and a proper purpose, and it cannot be used to achieve a de facto review or de facto appeal of what has happened in the appeal to date.

29 Judge Hampel stated that the tribunal had done all that was reasonably appropriate to accommodate the applicant's requests, and to balance the rights of both parties to a fair and timely hearing. Her Honour noted that the tribunal sought and obtained the consent of the applicant to allow the respondent to be legally represented. Her Honour observed that the applicant's consent was not strictly necessary, as under cl 67 of Sch 1 to the VCAT Act, a party to a proceeding for a possession order under the Residential Tenancies Act is permitted to be represented by a professional advocate as of right.

30 Her Honour noted that any disadvantage the applicant may have suffered as a result of being served with an affidavit on the morning of the hearing was remedied by the adjournments granted by the tribunal member on 7 March, an adjournment until the next day.

31 Her Honour also observed that the refusal to grant an additional adjournment should be seen in context. The respondent had been seeking payment in arrears since December 2010. The matter had been adjourned at the request of the applicant on three occasions before any order was made. Twice orders had been made for possession and payment of rent. Moreover, in the two weeks since the application for reconstitution was made, the applicant had done little to obtain legal representation. Her Honour concluded that even if the hearing were reconstituted, there would be no guarantee that the applicant would be legally represented at this hearing.

32 Her Honour found that for these reasons, she did not consider that the applicant had established that the application for reconstitution was for a proper means or purpose.

33 Although the applicant had withdrawn his allegation of bias on the part of Member Barker, her Honour considered whether his complaints about the conduct of Member Barker would constitute actual or apprehended bias. Her Honour considered whether the fact that Mr Mastromauro was an acquaintance of Member Barker's husband could constitute bias. Her Honour found that it could not be established that the member knew Mr Mastromauro personally, nor did it strike Member Barker or Mr Mastromauro as significant at the time of the hearing. No reasonable apprehension of bias could be established.

34 Her Honour also had regard to the applicant's claim that Member Barker treated him in a different manner to the way she treated the respondent's witnesses and legal representatives. Her Honour determined that Member Barker's conduct did not evidence unequal treatment. Her Honour found that tribunal members must be able to require those appearing before them to act appropriately, and in that sense, Member Barker's decision to rebuke the applicant for accusing the respondent's counsel of lying was appropriate. The applicant's subjective perception that Member Barker did not like him did not provide a basis for demonstrating that a reasonable person, aware of all the circumstances, would think that the member might not bring an impartial mind to the proceeding. Having refused the application for reconstitution, her Honour ordered the matter to be relisted for 7 April 2011.

35 The applicant now seeks leave to appeal from the orders made by Judge Hampel refusing the application for reconstitution. The application is brought, as mentioned above, under s 148 of the VCAT Act. Section 148(1) of the VCAT Act provides that:

A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or

(b) to the Trial Division of the Supreme Court in any other case -

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

36 In Myers v Medical Practitioners Board of Victoria, Warren CJ said the following:[2]

The approach as to when a court will grant leave to appeal pursuant to s 148(1) of the VCAT Act is set out by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls. In summary, Phillips JA states:

whether leave is granted or not must always depend upon the justice of the particular case;
if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;
the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists ...
once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.

37 The applicant bases his application for leave to appeal on the following grounds: (1) Denial of procedural fairness; (2) Denial of natural justice; (3) Denial of a reasonable opportunity to examine and cross-examine witnesses; and (4) Denial of a fair opportunity to get legal representation or, failing that, legal advice.

38 The applicant has not sought to formulate a distinct question of law. However, as he is unrepresented I will nevertheless consider the grounds of his application. It should first be noted that the first two grounds are in substance the same, procedural fairness being regarded as an alternative expression for natural justice. The third ground is in effect a particular of the allegation that there has been a denial of procedural fairness and the fourth ground is closely associated with it. The four grounds can be considered together.

39 The applicant submits that he was denied a fair opportunity to obtain legal representation at the hearing before Member Barker, or legal advice in relation to the hearing. He states that he had been receiving advice in relation to the hearing from a Legal Aid solicitor. As mentioned above, at the tribunal hearing on 7 March 2011, Member Barker adjourned the hearing until the following afternoon to allow the applicant to obtain advice from this solicitor. When the hearing recommenced, Member Barker refused the applicant's request for a further adjournment until 10 March 2011, a date on which the applicant's solicitor would be available to represent him. The applicant states that he was therefore denied the chance to obtain legal representation for the hearing on 8 March 2011.

40 Having regard to the applicant's submissions, it is apparent that the central argument that the applicant seeks to raise is that he was denied natural justice because Member Barker failed to afford him a reasonable opportunity to present his case. He argues that Judge Hampel erred in law by failing to reconstitute the tribunal on the basis of this denial of natural justice or procedural fairness before Member Barker.

41 There is no doubt that the tribunal is bound by the rules of natural justice (or procedural fairness, as it is now more commonly called).[3]

42 However, it is clear that s 148 of the VCAT Act does not provide an opportunity for a rehearing on the merits. The applicant's submissions, insofar as they seek merely to reagitate the submissions he made before Judge Hampel that the behaviour of Member Barker was in breach of the rules of natural justice, do not amount to a question of law. It is not for the Court of Appeal to rehear the application for reconstitution brought before Judge Hampel.

43 Rather, it is necessary for the applicant to point to an error on the part of Judge Hampel (although, at this leave stage it is not necessary for him to prove that those errors occurred). Given the nature of the applicant's complaints, there would be a question of law raised for the consideration of this Court if the question was raised that it had not been open to Judge Hampel to conclude that Member Barker had not breached the rules of natural justice. Such a question is a question of law.[4] I also accept that a question of law is raised by the applicant's submission that Judge Hampel (and not only Member Barker) had breached the rules of natural justice.[5]

44 With respect to her Honour's findings in relation to the hearing before Member Barker, Judge Hampel made findings of fact that led her Honour to refuse the application to reconstitute the tribunal. As mentioned above, a finding of fact will be overturned on an appeal on a question of law only if that finding was not open. In the present matter, there was clearly direct evidence supporting the findings of fact made by Judge Hampel that Member Barker had taken a number of steps to accommodate the applicant and to ensure that he had a reasonable opportunity to present his case without depriving the respondent of the legal representation to which he was entitled. Her Honour ruled the tribunal had done all that was reasonably appropriate to accommodate the applicant's requests, and that any possible unfairness to the applicant was remedied by the decision to adjourn the proceedings to allow the applicant to consult with a solicitor from Legal Aid. Her Honour also had regard to the context of the request for further adjournments, noting that the applicant had obtained three prior adjournments.

45 It was argued at the hearing today that her Honour erred by not listening to a recording of the hearing before Member Barker or viewing a transcript. I do not consider that in the circumstances of the case it was necessary for her to do so. Her Honour noted that she was relying 'on the tenant's account', that is, the applicant's. While the applicant was unrepresented before Judge Hampel he had been given the opportunity to make oral submissions to her Honour and to ask some questions, as he accepted today.

46 It is also argued that there were inaccuracies in statements made by her Honour. Some of these inaccuracies were said to be created by, for example, a failure to mention that Mr Spilkin was absent at the hearing on 10 February for the reasons I adverted to before. As I have already mentioned, I do not consider that a failure to mention this gives rise to a conclusion that her Honour drew an adverse inference from the applicant's absence. The applicant has been unable to persuade me that any statements of fact made by her Honour in her reasons were materially inaccurate.

47 Her Honour noted that although a further two weeks had elapsed since the applicant made his application for reconstitution to the President, he had done little to secure legal representation in the meantime. He told her Honour that he had applied for legal aid over a week after the matter was referred to the President and that he would only be happy to have the assistance of certain particular duty lawyers although he said later that he appreciated that he could not necessarily determine which duty lawyers represented him. In those circumstances, her Honour was not satisfied that the applicant would have been represented even if the hearing were reconstituted.

48 In relation to the applicant's claim that he was denied a reasonable opportunity to examine and cross-examine witnesses, Judge Hampel found that 'it is clear that the tribunal gave the tenant every opportunity to say what he wanted to. He did not complain he was prevented from making submissions or giving evidence.'[6] As I have mentioned, while her Honour did not listen to a recording of the proceedings or view a transcript, she based her findings on the accounts provided by the applicant and by the respondent. These findings of fact were open to her on the evidence provided.

49 With respect to the applicant's claim that he was denied procedural fairness by Judge Hampel, there is no evidence to suggest that this was so. Her Honour

heard submissions from the parties on the day on which the matter was listed for hearing and reserved her decision. Her Honour carefully took account of the submissions the applicant made and, in addition, although the applicant had withdrawn his allegation of bias against Member Barker, her Honour considered whether the conduct of Member Barker would constitute actual or apprehended bias. She further rejected the application of the respondent to order the substantive matter to be heard immediately on the ground that this would be a denial of procedural fairness to the applicant.

50 The applicant argued today that her Honour allowed counsel for the respondent to summarise at length the factual background to the proceeding. That in itself would not found a complaint. As I have already mentioned, I am not persuaded that there were any material inaccuracies in her Honour's account of what had occurred.

51 In my opinion, there is insufficient doubt to warrant a grant of leave arising either from the allegation that Judge Hampel was in error in finding that Member Barker had failed to accord procedural fairness or from the allegation that Judge Hampel was in breach of the obligation to accord procedural fairness.

52 In my opinion the decision of Judge Hampel is not attended by sufficient doubt to warrant the granting of leave and no substantial injustice arises from allowing the decision of Judge Hampel to stand.[7]

[2] Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55-6 [28] (footnotes omitted).

[3] Collection House Ltd v Taylor [2004] VSC 49, [20]. (Nettle JA).

[4] S v Crimes Compensation Tribunal (1998) 1 VR 83, 88-93.

[5] Luck v Renton [2005] VSCA 210, [17] (Maxwell P and Harper AJA).

[7] Niemann v Electronics Industries Ltd [1978] VicRp 44; [1978] VR 431, 433 (McInerney J).

Civil and Administrative Tribunal Act 1998

Spilkin v Rosenberg [2011] VSCA 128

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Spilkin v Rosenberg [2011] VSCA 128 (6 May 2011)

Parties

Legislation Cited (2)

Cases Cited (2)