Tan v Wee [2025] VSCA 331

1. She also went to consider ground 2. Under this ground, the applicant complained that evidence of successful communications from multiple agents had no probative value. The judge said:

Section 55 of the Evidence Act provides that evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. There is no merit to the appellant's submission that evidence of past successful communications has no probative value to the issue of whether it was reasonable to expect that the information would be readily accessible so as to be usable for subsequent reference. Accordingly, I conclude that there is no merit to ground 2.

1. The judge considered that ground 3 again picked up on the applicant's concerns about there being a difference between a history of successful communications with other agents compared to an email from a specific agent. Her Honour said:

The written submissions of the appellant accused the Registrar of bias and criticised Irving AsJ for not making an adverse finding against the Registrar's decision making, specifically directing attention to paragraphs [80] to [82] of Irving AsJ's reasons.

There is no basis for any of these assertions. It is clear that the Registrar appropriately and methodically considered the evidence.

The fourth ground asserts that the Irving AsJ failed to consider relevant considerations. The appellant essentially complains that the associate justice did not accept submissions that the Registrar had made three errors in relation to her consideration of screenshots of emails and tracking evidence.

In particular, concern was expressed about the findings of the Registrar in circumstances where the agent did not provide tracking evidence of the email sending the notice to vacate. This ground again essentially seeks to re-agitate the Registrar's assessment of the evidence. No error has been demonstrated by the appellant. Accordingly, I conclude that there is no merit to ground 4.

1. The judge also rejected a submission that there had been a failure to conclude that the Registrar reversed the onus of proof in considering whether a submission or argument was supported by evidence (the subject of ground 5). She also found that grounds 6-8 (which dealt with the treatment of certain pieces of evidence) raised no error of law.
2. Ground 9 sought to challenge the requirement for the applicant to have made an application for an extension of time in relation to the new grounds which sought to impugn the compensation order. The judge did not accept the applicant's contention that there was 'no need' for an application for an extension of time because the amendments related to an appeal against the original order. In any event, the associate judge found that there was no merit in those grounds at [86]-[89] of his reasons.
3. The judge also found there to be no merit in relation to grounds 10 and 11 which, inter alia, complained about the Registrar's case management and alleged failure to rely on proper citations.
4. Insofar as the additional applications were concerned, the judge observed that the submission for orders under the CPA was not served on the respondent. Further she said:

The appellant has not been clear on precisely what orders are sought, but the orders sought include costs and compensation. The appellant has not relied on or identified any evidence that would justify a finding that the respondent, or the respondent's solicitors, have breached their obligations under the Civil Procedure Act. There is no basis for me to accede to the appellant's request to make any orders pursuant to the Civil Procedure Act, and I refuse the appellant's request for me to make orders on my own motion.

1. Her Honour also noted that the application for a declaration was not served on the respondent and refused to give any declaratory relief, noting that there was 'no basis for a declaration of this kind in this matter'.

1. The notice of appeal document is difficult to read and comprehend. However, it purports to identify eight grounds which relevantly read:

GROUND 1: BREACH OF OVERARCHING OBLIGATIONS

Justice Judd failed to give effect to the overarching purpose of the Civil Procedure Act (CPA) in the exercise or interpretation of any of their powers (s8(1)). The effect of s29 is to transform the overarching obligations from aspirational to obligatory.

The words 'MUST' are used in S.41(1)&(2) and s8(1) of the CPA Civil Procedure Act. The obligation to give effect to the overarching purpose applies despite any other Act or law to contrary (except the Charter of Human Rights and Responsibilities Act 2006) (s8(2)).

GROUND 2: PROCEDURAL UNFAIRNESS/STANDARD OF PROOF

Justice Judd erred in not addressing or considering the issue repeatedly raised by the Appellant that Associate Justice Irving failed to consider that Judicial Registrar Fawcett was not and could not have been persuaded on balance of probabilities that her findings in favour of the Respondent is more probable/likely than for the Appellant's because the Appellant's evidence was not even considered.

GROUND 3: PROBATIVE VALUE AND PRIOR PROBABILITY

Justice Judd did not address the Appellant's submission that assessment of evidence needs to consider prior probability.

GROUND 4: ELECTRONIC TRANSACTIONS ACT (ETA)

Justice Judd erred in interpreting that the requirements of s.8 ETA will suffice if there are some evidence of probative value to make inferences. This is a clear error as the legislation does not say 'reasonable to wish', 'reasonable to hope', 'reasonable to suspect', 'reasonable to believe', or 'reasonable to infer'.

The legislations clearly states 'reasonable to expect'.

By stating 'reasonable to expect', the legislator clearly requires more than just inferring.

GROUND 5: FAILURE TO CONSIDER FUDAMENTAL CONSIDERATIONS

'Reasonable to expect' under s.8(2) requires an enquiry on what the sender knew and had expected at the time of sending the email preliminary to the question of law on whether it was 'reasonable to expect'.

No one knows what was operative on the mind of the sender, whether he expected or not expected the email to be readily accessible because the sender was not even present at the Magistrate's Court hearing to account on what he had or had not expected, and there was no affidavit to this effect. Justice Judd erred in not addressing/considering that it is not open to any Judicial Registrar or a judicial officer under s.8(2) to infer what might have gone on in the minder of the sender, or infer about what inferences the sender could have or might have made.

[ the application goes on to identify various 'questions of law' which included whether 'reasonable to expect' required a 'subjective test']

GROUND 6: FAILURE TO CONSIDER FUDAMENTAL CONSIDERATIONS

Justice Judd did not address AJ Irving's error in considering and stating the test under s.8(2) as 'reasonably accessible' instead of 'readily accessible'. This was a fundamental point on Associate Justice Irvings error that Justice Judd failed to consider.

GROUND 7: APPLICATION OF SECTION 55 EVIDENCE ACT IN RELATION TO ETA

Justice Judd erred in relying on Section 55 Evidence Act which is concerned with a fact that has taken place such as whether the sender sent the email, and whether the receiver received the email while s8(2) of the Electronic Transactions 11 Act concerned with a future event that has yet to take place, and the question is whether was reasonable to expect that this event will take place.

.....

Ground 8: LEGAL ERROR

The Appellant should have been allowed to make at least one amendment to the appeal heard by AJ Irving rather than having to make an application for an extension of time. Justice Judd erred in agreeing/not addressing the errors submitted by Counsel at paragraph 52 of the Respondent's Submission[which wrongly submitted that amendments to a notice of appeal fall within the scope of rule 64.06 and 64.12]

.....

Section 210 Residential Tenancies Act 1997

Justice Judd did not address the Appellant's complaint that section 210 of the Residential Tenancies Act which the Judicial Registrar had applied cannot be relied by the Respondent where breaches of a duty provision are concerned.[15]

1. The grounds therefore appear to allege that the judge erred in four ways:

(a) in relation to the additional applications under the CPA, including by failing to give effect to the overarching purpose;

(b) in relation to the treatment of evidence, particularly because the associate judge did not consider the applicant's evidence;

(c) in failing to find that there had been error in construing s 8 of the ETVA, including by wrongfully using 'inferences'; failing to apply a 'subjective test'; failing to acknowledge that the associate judge misapplied concepts of 'reasonably accessible' instead of 'readily accessible'; and wrongly relying on s 55 of the Evidence Act 2008 ('Evidence Act'); and

(d) in failing to find that the applicant 'should have been allowed to make at least one amendment' to challenge the compensation order.

1. There was also the complaint about s 210 of the RTA, though this did not form the basis of a proposed ground.
2. In his written case, the applicant identified five issues and seven grounds which do not correlate with the grounds in the notice of appeal. Nevertheless, the four key matters identified above appear to again be repeated.
3. In relation to the first matter, the applicant submitted that he had relied on materials filed in the associated costs proceeding, and cited various matters that appeared to have occurred in relation to that costs proceeding.
4. In relation to the second matter, the applicant complained, in particular:

(a) that the judge failed to take into account that the applicant's evidence ought to have been considered;

(b) that no email 'tracker' was produced by the respondent in relation to the notice to vacate; and

(c) that it was inappropriate to rely on a history of successful communications in the absence of 'prior probability' of a successful email sent from the sender of the notice. Further, that the judge evinced 'confirmation bias'.

1. In relation to the third matter, the applicant submitted, in particular:

(a) that the concept of 'reasonable to expect' involved something more than just 'making inferences';

(b) that s 8(2) of the ETVA involved a subjective test. It was therefore not open to infer what might have gone on in the mind of the sender in circumstances where the sender gave no evidence;

(c) that the associate judge erred in stating that the test was 'reasonably accessible' instead of 'readily accessible'; and

(d) that the judge erred in relying on s 55 of the Evidence Act which was concerned with a fact that had taken place, whereas s 8(2) of the ETVA was concerned with a future event.

1. In relation to the fourth matter, the applicant reproduced the matters raised in his application for leave to appeal and submitted that he should have been allowed to make at least one amendment.
2. Finally, the applicant alleged that s 210 of the RTA cannot be relied upon to obtain compensation when minimum standards of living had not been provided and there had been 'breaches of a duty provision'.
3. In further written submissions filed (without leave) on 14 December, 2025, the applicant reiterated a number of matters, making particular reference to s 210 of the RTA and the absence of the 'email tracker'.

1. The (unamended) notice of appeal the subject of consideration by both the associate judge, and the judge, was an appeal on a question of law under s 109 of the MCA against the possession order.
2. Section 109 of the MCA relevantly provides as follows:

(1) A party to a civil proceeding in the Court may appeal, on a question of law, from a final order of the Court in that proceeding -

...

(b) in the case of the Court constituted other than by the Chief Magistrate who is a dual commission holder - to the Supreme Court.

(2) An appeal under subsection (1) -

(a) must be instituted not later than 30 days after the day on which the order complained of was made; ...

...

(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).

(5) The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

1. As correctly observed by the associate judge, the existence of a question of law is not only a precondition to the right to appeal, but also the subject of the appeal under s109.[16]
2. It is convenient at the outset to deal with the complaints which concerned the compensation order. As is apparent from the terms of s 109(2)(a), above, an appeal must be instituted not later than 30 days 'after the day on which the order complained of was made'. The applicant therefore did 'need' to seek leave and obtain an extension of time to challenge the compensation order (made on 13 October) given he did not purport to challenge that order until 30 December 2022 (being more than 30 days later).
3. It follows that the judge was correct to reject the applicant's submission to the effect that he had some entitlement to challenge the compensation order. Nor did the applicant identify any other error made by the judge in relation to the compensation order. More particularly, the associate judge did not refer to any incorrect provision, but properly and carefully applied s 109.
4. However, in the absence of any challenge to the compensation order, the subject matter of the appeal is exclusively referable to a possession order. Given that the applicant has subsequently vacated the premises, the application appears to be futile and totally without merit on this basis alone.
5. In any event, there is also no merit in the other complaints made by the applicant.
6. In terms of the complaint about the treatment of evidence, the applicant has failed to identify any question of law. The transcripts he adduced suggest that the Registrar made express reference to his evidence, as the associate judge also correctly observed.[17] The complaint about an absence of an email tracker does not appear to have been raised with the Registrar. In any event, any such absence could not be determinative. The judge was correct to find that the Registrar 'appropriately and methodically considered the evidence'. The fact that the Registrar might have rejected some of that evidence (for being 'not credible') also raises no question of law.
7. The matters raised by the applicant concerning s 8(2) of the ETVA were also totally devoid of merit. More particularly:

(a) the phrase, 'reasonable to expect,' in s8(2)(a) clearly connotes an objective test;

(b) the drawing of inferences was appropriate and the judge was correct to say that a history of successful communications with other agents could be taken into account pursuant to s 55 of the Evidence Act;

(c) the associate judge correctly recited s 8(2)(a) when he considered whether it was 'not reasonable to expect that the notice to vacate would be readily accessible'.[18]

1. Turning to the treatment of the additional applications, the judge clearly gave effect to the overarching purpose by rejecting those applications. As she observed, they were not served, lacked clarity, and were not supported by evidence. To the extent that references are made to documents, the applicant cited a wide range of materials which appear to have been filed in relation to the proceeding in the Costs Court. They do not identify any complaints concerning breaches of CPA obligations with any specificity or clarity. Conidi JR also separately considered whether there were alleged breaches of the CPA in the costs proceeding on 6 May 2025 (which was subsequent to the decision of the judge).[19]
2. Finally, the complaint about s 210 of the RTA[20] was misconceived. Leaving aside that it does not form part of the subject matter of the appeal, the applicant chose not to make any application for compensation though he was twice invited to do so.[21] Nor did he choose to appear to give evidence about any alleged 'breaches' at the hearing before the Registrar on 13 October.

1. The application for leave to appeal will be dismissed and the applicant will be ordered to pay the respondent's costs of the application for leave to appeal. The order will also reflect that this application is totally without merit.[22]

[1] Tan v Wee [2023] VSC 687 ('Associate Judge's Reasons').

[2] Tan v Wee (Supreme Court of Victoria, K Judd J, 20 March 2025).

[3] Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2025, the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar's referral, I considered that it was neither necessary, nor desirable, to have an oral hearing of this application.

[4] The applicant produced transcripts of what occurred at the Magistrates' Court by using software that converted an audio recording to text. The associate judge permitted him to rely upon those transcripts.

[5] Though the 'amended notice of appeal' is dated 23 December 2022, it was accepted for filing on 30 December 2022. This is inconsequential, as both dates are more than 30 days after the compensation order.

[6] As will be explained below, s 109(2)(a) of the Magistrates' Court Act 1989 provides that an appeal under s 109 must be instituted not later than 30 days after the day on which the relevant order was made.

[7] Magistrates' Court Act 1989, ss 109(4), (5)(a). See also Mako'ochieng v Kirk [2017] VSC 459, [9] (McDonald J).

[8] Rule 58.10(9) provided: 'The Court may dismiss the appeal if satisfied that - (a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought; (b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or (c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.'

[9] In refusing the application to extend time, the order may also be taken to be a decision to refuse the deemed application for leave to appeal under s 109(4).

[10] Associate Judge's Reasons, [80]-[81].

[12] Tan v Wee (Supreme Court of Victoria, Irving AsJ, 15 December 2023).

[13] Tan v Wee (Supreme Court of Victoria, Conidi JR, 28 April 2025).

[14] Tan v Wee (Supreme Court of Victoria, Conidi JR, 6 May 2025).

[15] Emphasis in original, citations omitted.

[16] Wong v Carter [2000] VSCA 53, [43] (Tadgell JA, Winneke P agreeing at [49], Chernov JA agreeing at [41]).

[17] See, eg, Associate Judge's Reasons, [27]-[30], [35].

[18] Associate Judge's Reasons, [80].

[19] Tan v Wee (Supreme Court of Victoria, Conidi JR, 6 May 2025).

[20] Section 210 entitles a party to a residential rental agreement to apply to VCAT for an order for compensation because (a) the other party failed to comply with the agreement or duties under the RTA; or (b) the applicant has paid to the other party more than required under the agreement or the RTA.

[21] Associate Judge's Reasons, [11]-[13].

[22] Section 14D(3) of the Supreme Court Act 1986 provides that '[i]f the Court of Appeal dismisses an application for leave to appeal without an oral hearing and has determined that the application is totally without merit, the applicant has no right to apply to have the dismissal set aside or varied.'