Vasiliou v Australia's Country Homes Pty Ltd [1999] VSC 462

11. On 4 December 1997 ACH made a claim in respect of the debt to the Domestic Building Tribunal. The applicant lodged a cross-claim alleging that the work carried out by Glenvill was defective. The claim and cross-claim were placed in the Domestic Building List of the Victorian Civil and Administrative Tribunal.

14. The hearing of the claim and cross-claim commenced before the Tribunal on 9 October 1998. The applicant was represented by counsel as was ACH.

17. At the commencement of the hearing that day the applicant's counsel sought an adjournment of the proceedings for a short period of time on the basis that ACH's witness statements which the Tribunal had earlier ordered be served on the applicant by 7 September 1998 had not been served until 7 October 1998.

20. The Tribunal acceded to the application and adjourned the proceedings to Monday 12 October.

23. On 12 October 1998 the applicant appeared before the Tribunal unrepresented. He made no application for any further adjournment of the proceedings and the hearing commenced that day and continued over 13 and 14 October.

26. At the outset of the hearing counsel for ACH informed the Tribunal that the sum then claimed by ACH was $31,950.00.

29. It would appear from the reasons for decision of the Tribunal that the principal defence of the applicant to ACH's claim was based upon what the applicant alleged was a term of his agreement with Glenvill that the cost of the work in question would not exceed $10,000.

32. At the conclusion of the hearing on 14 October the Tribunal further adjourned the proceeding to enable ACH to submit amended points of claim setting out the grounds upon which it resisted the applicant's claim that the costs of the work were limited to $10,000. The Tribunal ordered that the amended points of claim be filed and served on or before 21 October 1998 and that the applicant's written submissions in respect of the amended points of claim be filed and served on or before 28 October 1998.

35. ACH complied with the order. The applicant did not.

38. A further directions hearing was held by the Tribunal on 13 November 1998. At that hearing the applicant was represented by counsel.

41. On the application of the applicant's counsel the time for the applicant to file and serve his submissions was extended to 18 November 1998.

44. Due to an administrative oversight the applicant's submission was not brought to the attention of the Tribunal before it made its original determination in the matter on 10 December 1998.

47. When that fact was later drawn to the attention of the Tribunal the Tribunal withdrew its original determination and reconsidered the claim and cross-claim in the light of the applicant's submissions.

50. On 21 December 1998 the Tribunal delivered its determination and made the following orders in the matter:

"1. The respondent, A. Vasiliou, pay the applicant, Australia's Country Homes, the sum of $31,950.00 with a stay of one month. 2. The respondent to pay the applicant interest at the penalty interest rate on the sum of $31,950.00 from the date such sum was due. 3. The respondent's cross-claim be struck out. 4. The parties provide me with written submissions as to the amount of interest due; and, whether and if so, by whom, the legal costs of this application should be paid, upon what basis such legal costs should be assessed and the reasons for so submitting. Such written submissions to be filed and served on or before 25 January 1999. 5. The matter be set down for one day hearing in relation to interests and costs on 12 February 1998."

54. The reasons for decision of the Tribunal cover more than 30 typed pages. In the course of its reasons the Tribunal has dealt comprehensively with all matters raised by the parties for its determination. I can find nothing in those reasons from which it could be argued that the Tribunal made an error of law in the matter. Any questions of law raised in the proceedings were carefully dealt with by the Tribunal and ruled upon by it. I agree with the Tribunal's rulings.

57. It is perhaps significant to note the following matters which appear in the Tribunal reasons:

(1) The Tribunal found the applicant to be an unsatisfactory witness who made extravagant claims wherever necessary to bolster his case or explain his actions, claims which could not be borne out. The Tribunal specifically found that ACH's witnesses were truthful and rejected the applicant's evidence where it was in conflict with the evidence they gave.

(2) Insofar as the applicant's cross-claim was concerned the Tribunal stated:

"4.1 Hearing At the completion of the ACH case and before Mr. Vasiliou opened his case I asked Mr. Vasiliou what his intentions were in regard to the cross-claim as he had not sought to cross-examine any of the ACH witnesses in regard to matters in the cross-claim. He informed me that it was still on foot but he could not call any evidence in regards to the cross-claim. Counsel for ACH informed me that as Mr. Vasiliou had informed the Tribunal at the start of the hearing he was only calling himself as a witness ACH had not arranged any expert witnesses to give evidence to relation to the cross-claim. Although, ACH had a report from a building expert. Mr. Laird for ACH submitted further, it was ACH's view that Mr. Vasiliou could not sustain an action in law against ACH for rectification works at the display home in Kooyong Road, Caulfield. I ruled that I would hear ACH's argument as to whether Mr. Vasiliou could sustain a claim for defective works against ACH or Glenvill at Kooyong Road. If I held that Mr. Vasiliou could sustain such an action then a further hearing of 1 day would be required and would be set down. If I upheld ACH's argument that Mr. Vasiliou could not sustain an action in law against ACH or Glenvill for defective works at Kooyong Road then the cross-claim would be struck out."

63. The Tribunal then dealt at length with the question whether the applicant's cross-claim could be sustained and determined that it could not.

66. On 5 February 1999 the applicant wrote a letter to the Tribunal seeking that it reconsider the matter.

69. On 8 February the Chairman of the Tribunal wrote the following letter to the applicant:

"Mr. Andrew Vasiliou 446 Kooyong Road CAULFIELD VIC 3162 Dear Mr. Vasiliou, Thank you for your letter of 5 February 1999. The Domestic Building List of the Victorian Civil and Administrative Tribunal is part of an independent adjudicative body, which determines disputes on evidence produced at hearings. Legislation does not empower me to intervene in any matter, which is or has been the subject of a Tribunal Hearing. It is inappropriate for me to comment on the fairness of the proceedings or the conduct of a Tribunal Member. Where disputes come before the Tribunal, the presiding Members must acquaint themselves with the facts and then on the balance of probabilities decide the matters in dispute. As I understand your letter to me the Tribunal in this instance found in favour of the Applicant. Each matter before the Tribunal however is decided, 'on its merits' and whilst I understand that you are dissatisfied with the decision, I am unable to alter it. There is no provision in the legislation for the matter to be reconsidered once an order has been made. A party who is dissatisfied with the decision of the Tribunal has certain rights to take the matter to the Supreme Court. You should seek legal advice before commencing such action and note that some times limits do apply. I have referred your letter to the Deputy President in charge of the Domestic Building List of the Tribunal. Yours sincerely PRESIDENT." (The emphasis is mine.)

73. Despite the content of that letter and on 18 March 1999, the applicant filed a summons in the Tribunal seeking to have the Tribunal's orders of 21 December 1998 set aside.

76. The summons came before a Deputy President of the Tribunal on 22 April 1999. The Deputy President dismissed the summons. During the course of the hearing the Deputy President asked the applicant why he had not appealed the orders of 21 December to which the applicant replied that he could not find a lawyer to represent him because it was January.

79. The applicant freely acknowledged during the course of the hearing that day that he was aware of the fact that there was a provision in the Victorian Civil and Administrative Tribunal Act 1998 (the Act) relating to appeals. In that regard see paragraph 14 of the affidavit of James Murray Pergl sworn 1 July 1999. In light of the letter he had received from the President of the Tribunal he could hardly contend otherwise.

82. At all events on 1 June 1999 the applicant filed an originating motion in the Court whereby he sought leave to appeal to this Court pursuant to the provisions of s.148 of the Act. The provisions of s.148 relevant for present purposes read:

"148. Appeals from the Tribunal (1) 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. (2) An application for leave to appeal must be made - (a) no later than 28 days after the day of the order of the Tribunal; and (b) in accordance with the rules of the Supreme Court. ... (5) The Court of Appeal or the Trial Division, as the case requires, may at any time extend or abridge any time limit fixed by or under this section."

86. The grounds upon which the applicant sought leave were that:

(2) in reaching its decision, the Tribunal relied on procedures that were unfair, denied the applicant natural justice and procedural fairness and contravened provisions of the Act and Rules made thereunder.

91. The originating motion came before Master Wheeler on 5 July 1999. Upon the application of the applicant the originating motion was adjourned to 9 July 1999.

94. In his order made that day the Master recorded the following matters:

"1. The only order sought to be appealed is that of 21 December 1998. 2. Subsequent there was an application pursuant to Section 120 Victorian Civil and Administrative Tribunal Act to re-open the proceeding. This was dismissed on 22 April 1999. 3. On 5 May 1999 there was another order as to interest (by consent) and costs. 4. There is no evidence as to why the application for leave to appeal out of time should be granted. 5. Having been told that if there was to be an application to extend time for appeal I expected all relevant evidence to be filed before I ruled as to whether the appeal was out of time. Nonetheless counsel on instructions submitted that the appeal was within time and thereafter made application for adjournment."

98. On 9 July 1999 the applicant filed an amended originating motion in the Court by which he sought leave to appeal out of time. Otherwise the originating motion was in the same form as the one filed on 1 June.

101. The amended originating motion was supported by a further affidavit sworn by the applicant on 8 July. The affidavit contains the following paragraphs:

"5. At the time the order was issued I was unrepresented. Accordingly, as the order was issued only four days prior to the Christmas and New Year holiday period I waited until the new year to contact the Tribunal. Upon contacting the Registrar of the Tribunal I was informed by a person in the Registry that and believed that if I had any grievances in relation to the order I was to write to the President of the Tribunal regarding my concerns. Now produced and shown to me and marked with the letters 'AV 3' is a copy of the letter dated 5 February 1999 which I sent to the President of the Tribunal. 6. On 12 February 1999 I attended a hearing at the Tribunal before the Member in order to determine the issue of costs and the amount of interest that remained outstanding from the order made on 21 December 1998. At this hearing I was represented by Mr. John McMillan solicitor who consented to the interest amount of $9,791,15. This was intended to be an agreement as to the amount of interest which had been ordered on 21 December 1998. Unfortunately, the question of costs was reserved for another day. It was my understanding and belief that the dispute between myself and the respondents was not finalised until the issue of costs had been determined by the Tribunal. I dispute the finding which found the order that I pay the claim and interest and did not intend the consent as to the amount to indicate any agreement to pay that amount. 7. On or about 11 March 1999 I filed an Application with the Tribunal under the following sections of the Victorian Civil and Administrative Tribunal Act 1998 ('the Act'): (a) section 119 of the Act in order to correct material miscalculation of invoice amounts totalling $8,536; and (b) section 120 of the Act for the purposes of re-opening the order on substantive grounds. Now produced and shown to me and marked with the letters 'AV4' is a copy of the application filed with the Tribunal. 8. On 22 April 1999, Professor D.J. Cremean, the Deputy President of the Domestic Building List of the Tribunal ('the Deputy President') heard the application. The application under section 119 was successful in that the material miscalculations in the order were amended along with some minor clerical errors. However, the application seeking to re-open the order on substantive grounds pursuant to section 120 of the Act was dismissed. The amendment to the calculations affect the order because the sum order to be paid is based on calculations which have been substantially amended. Now produced and shown to me and marked with the letters 'AV5' is a copy of the order made on 22 April 1999. 9. As a result of the material calculation amendments referred to in paragraph 8 I was confused as to the status of the order dated 21 December 1998 with the subsequent amendments made on 22 April 1999 particularly as the costs issues remained outstanding. I understand that because matters had been finalised before the Tribunal I should not make an application in order to appeal the Tribunal. I waited until the cost order was finalised to instruct solicitors to constitute appeal proceedings in the Supreme Court. 10. During the course of the hearing on 22 April 1999 the Deputy President asked me why I had not appealed the order of 21 December 1998. I replied to the Deputy President with words to the effect that it was expensive to appeal to the Supreme Court. The Deputy President informed me that I could do the appeal myself and noted that although the time to appeal the order may be out of time, there was provision in the Supreme Court Act to extend the time to lodge an appeal."

105. It is to be noted that on 15 February the applicant was again represented by a solicitor.

108. On 9 July 1999 Master Wheeler gave the applicant leave to amend his originating motion and after hearing argument by counsel for the parties dismissed the application.

111. I assume from the nature of the order the Master made that he dismissed the applicant's application for leave to appeal out of time rather than the application for leave to appeal on a question of law. However, the matter is not clear.

114. On 10 September 1999 the applicant filed a notice of appeal in the Court seeking to appeal from the order of Master Wheeler made on 9 July whereby the Master dismissed the applicant's application and ordered that he pay the costs of the application. That notice of appeal is clearly out of time.

117. And so I effectively have before me three applications, one to extend the time within which the applicant may appeal from the orders of Master Wheeler made 9 July 1999, one to extend the time within which the applicant may seek leave to appeal from the orders of the Tribunal made 21 December 1998, and one seeking leave to appeal on a question of law from the orders of the Tribunal.

120. Because I am not satisfied that it is arguable that the Tribunal made any error of law in its reasons for determination I dismiss all applications.

123. Even if I had been satisfied that it was arguable that the Tribunal may have made some error of law in the matter, nevertheless I would have dismissed the application to extend the time within which the applicant could seek leave to appeal and the application to extend the time for appealing from the orders of Master Wheeler.

126. In the circumstances of this case the applicant's explanations for his failure to seek leave within time and to appeal within time are totally unacceptable. Again it is to be remembered that he was warned by the President of the Tribunal in the letter the President sent him on 8 February 1999 that there were time limits which applied concerning appeals, that he was represented by a solicitor when he appeared before the Tribunal on 12 February, and that he was represented by counsel and solicitors before Master Wheeler on 5 and 9 July.

129. Had the applicant filed an application seeking an extension of time within which to appeal from the decision of the Tribunal shortly following his appearance before the Tribunal on 12 February (and ignoring for the moment the fact that in my opinion it is not arguable that the Tribunal made any error of law in the matter), his application for an extension may have received a more sympathetic hearing. But he did not. He chose to wait until 9 July 1999 to make such an application.

132. When this matter came before me on 21 October both parties sought to rely on affidavits which were not before the Master. There was no good reason for their failure to have such affidavits before the Master. Any relevant material in them was clearly available to them prior to that hearing. Having regard to what was in the affidavits I did not consider it was appropriate to grant the special leave required by Rule 77.05(7)(b) and in the exercise of my discretion refused the applications.

135. In my opinion, so contumelious has been the behaviour of the applicant so far as these applications and in particular his present appeal are concerned, that I consider he should pay the respondent's costs of the appeal on an indemnity basis.

138. The applicant's appeal to this Court instituted by his notice of appeal filed in the Court on 10 September 1999 is dismissed. I order that the applicant pay the respondent's costs of the appeal on an indemnity basis, such costs to include any reserved costs.