The State Of Our Times Pty Ltd (now called Kornucopia Pty Ltd)

Respondent's application for reconstitution of the Tribunal under section 108 of the Victorian Civil and Administrative Tribunal Act 1998

Tam v The State Of Our Times Pty Ltd (Residential Tenancies) [2019] VCAT 1037

The Respondent's application for reconstitution of the Tribunal under section 108 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

1. During a hearing conducted by Member Powles on 8 July 2019 the Respondent, represented by its director Ms Lulu Xu, applied for an order under section 108 of the Victorian Civil and Administrative Tribunal Act 1998 for the reconstitution of the Tribunal.

1. The proceeding is an application for possession of rented premises brought by the Applicant landlords on the basis of non-payment of rent.

1. During that hearing Ms Xu said that the Respondent had changed its name from The State of Our Times Pty Ltd to Kornucopia Pty Ltd.

1. Ms Lulu Xu made submissions for the Respondent in a considered and forthright manner.

1. Ms Xu made the application for reconstitution on the grounds of apprehended bias, asserting that Member Powles had exhibited behaviours that showed that he would not decide the case on its merits.

1. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at page 345, the High Court of Australia set out a two-step test to determine whether apprehended bias is established:

"[First] ... the identification of what it is said might lead the [Tribunal member] to decide a case other than on its legal and factual merits. Second ... an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits".

1. In Guastalegname v Chevros Pty Ltd [2015] VCS 408, at paragraph 52, Lansdowne AJ referred to Ebner and put it this way:

The test for apprehended bias requires the party alleging it to first identify what it is that might lead the decision maker to decide a case other than on its merits, and then to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The question is to be determined on the basis of what a 'fair minded lay observer' might apprehend. Further, it is assumed that that 'fair minded lay observer' is aware of the nature of 'ordinary judicial practice'. In my view

an understanding of ordinary judicial practice in Australia would include an understanding that a submission may be rejected without any bias; that error does not necessarily arise from bias; that an adjudicator would ordinarily need a party to make specific reference to an authority if that party says that that authority applies; that an indemnity costs order may in some circumstances be appropriate; and that ordinarily adjudicators do not conspire with counsel for one party against the other party. (citations omitted)

1. Ms Xu's submissions did not identify any conduct of Member Powles which could suggest to any objective observer any possibility that he would decide the proceeding other than on its legal and factual merits.

1. Instead, Ms Xu set out some submissions she had made to Mr Powles, asserting that the Respondent had not been served with documents. She also sought to rely on an alleged limit in the authority held by a Mr Youll when he was representing the Respondent at a hearing in the proceeding before Member Powles on 1 July 2019. That alleged limit was most artificial. Ms Xu asserted that at that hearing on 1 July 2019 Mr Youll represented the Respondent as its employee but not as an officer, with the result that Mr Youll was not authorised to receive documents for the Respondent. Ms Xu pointed to a reference in the Order made by Member Powles on 1 July 2019 to Mr Youll receiving a document in that hearing.

1. Ms He, for the Applicant landlords, said that at the end of the hearing on 1 July 2019 Mr Youll collected the Tribunal's Order. Given that the Order of 1 July 2019 adjourned the matter to 8 July 2019, and that Ms Xu's appearance at the hearing on 8 July 2019 is only explicable by the Respondent having notice of the hearing, I must accept Ms He's evidence that Mr Youll collected the Order on 1 July 2019 as being true.

1. Ms Xu's evidence and submission on the alleged limit of Mr Youll's authority was specious. On any view it did not suggest any possibility that Member Powles would decide the proceeding other than on its legal and factual merits.

1. Similarly, to the extent that Ms Xu submitted that Member Powles had not accepted her submissions that the Respondent had not been served with documents, the appropriate place for the Respondent to raise those matters might be on appeal, but not by way of an application for reconstitution. Of course, as Member Powles had not decided the application at the time I heard the application for reconstitution I only mention appeal for the purpose of illustration.

1. Ms He and Mr Fung opposed the application for reconstitution and in substance submitted that Member Powles had not exhibited any bias in his conduct of the hearing.

1. In the circumstances I am satisfied that the Respondent did not make out its application for reconstitution under section 108 of the Victorian Civil and Administrative Tribunal Act 1998, and that the application had to be dismissed.

1. Several aspects of the Respondent's application for reconstitution are of concern.

1. In an application to me for reconstitution made in proceeding R2019/11941 on 14 June 2019, in respect of another member of this Tribunal, the Respondent was represented by Mr S Kuksal before me and Ms Xu was present. Mr Kuksal argued in support of that application for reconstitution, that before his arrival at the Tribunal and before the application for reconstitution was made, Ms Xu was representing the Respondent but that she could not speak English fluently; that the Tribunal member stood down to see whether arrangements could be made for an interpreter to attend; that the Tribunal was able to have the telephone interpreter service participate; but that having a telephone interpreter in lieu of an interpreter in person was a denial to the Respondent of natural justice. Throughout Mr Kuksal's submissions, Ms Xu was all but silent and this conveyed to me the impression that she had difficulty with English.

1. Whilst this argument about the telephone interpreter was rendered academic by Mr Kuksal taking over the making submissions for the Respondent, in the interests of fairness I wish to record that in the hearing before me in this proceeding R2019/5566 Ms Xu made detailed submissions fluently in English. She also made submissions in reply to the Applicants' submissions, again in English. To my observation she fully understood all of the exchanges in the hearing.

1. The Tribunal's Practice Note PNVCAT3 is entitled the "Fair Hearing Obligation". In addition to explaining the Tribunal's obligations, paragraphs 20, 21(b), (c) & (e) set out the parties' obligations, saying:

1. The Tribunal requires that parties and their representatives participate in its processes in a responsible way in order to assist the Tribunal to provide a fair hearing.

(b) act honestly in relation to the proceeding and must not knowingly give false or misleading information to the Tribunal;

(c) cooperate with other parties and the Tribunal to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute;

(e) assist the Tribunal in complying with the fair hearing obligation; ...

1. The Respondent did not comply with Practice Note PNVCAT3 in its application before me for reconstitution made in proceeding R2019/11941. Mr Kuksal's submission about the telephone interpreter coupled with Ms Xu's play acting was misleading.

1. I note that in Ye v Kornucopia Pty Ltd [2019] VCAT 824, at paragraphs 18, 23 & 24, Member Buchanan found Ms Xu's evidence to be unsatisfactory, evasive, and improbable and that he concluded in that proceeding that he would not accept Ms Xu's evidence, unless corroborated.

1. The Respondent's decision to seek reconstitution of the Tribunal in this proceeding R2019/5566 had the effect of stopping Member Powles' hearing on 8 July 2019. As I have said above the application was wholly without merit. Under section 78(2) of the Victorian Civil and Administrative Tribunal Act 1998 orders can be made against a party who attempts to deceive another party or the Tribunal, or who vexatiously conducts the proceeding. Sections 75(1) and 109(3), where applicable, also recognise and apply these concepts.

1. I am satisfied that the Respondent's application for reconstitution of the Tribunal in this proceeding was not made for genuine reasons, but was instead made to engineer an unnecessary delay in the disposition of the proceeding. The Respondent succeeded in causing that delay, but its application for reconstitution was vexatious and an abuse of process.