Wright v VCAT [2001] VSC 35

Supreme Court of Victoria|2001-02-14|Before: Gillard J

APPEAL AGAINST ORDERS MADE BY VCAT - Denial of natural justice.

Before the court are two appeals in two separate proceedings against orders made by the Victorian Civil and Administrative Tribunal ("the Tribunal") in respect to two applications made by former tenants against a landlord. The appeals are brought pursuant to s.148 of the ("the ").

On 1 August 2000, Beach J granted leave to appeal in each appeal and directed that they be heard together subject to any other order. The parties agree that the appeals should be heard together as they raise similar issues arising out of the same circumstances.

The appellant in each of the appeals is Kevin Francis-Wright ("the appellant"). In Proceeding No. 4901 of 2000 he joined the Tribunal as first respondent, and Mr Arnold Ganya ("Mr Ganya") as the second respondent. In Proceeding No. 4902 of 2000 the appellant joined the Tribunal and Mr Brendan Bandman ("Mr Bandman") as the second respondent.

The appellant at all material times was a registered proprietor of the premises known as 567 Maroondah Highway, Croydon ("the premises"). During the year 1999 he conduct the business of a rooming house at the premises which accommodated five tenants and himself. On 30 October 1999, he entered into a tenancy agreement with Mr Bandman for the occupation of a room within the premises. The agreement was in writing and was for a fixed term of three months ending on 30 January 2000. The rental was $100 per week and Mr Bandman was also obliged to pay three weeks' rent to the landlord in advance.

On 16 November 1999, the appellant entered into a written Tenancy Agreement with Mr Ganya for occupation of a room at the premises. The term was for a period of three months ending on 16 February 2000. The rental was $100 per week with three weeks rental paid in advance.

On 16 November 1999, the appellant entered into a written Tenancy Agreement with Mr Ganya for occupation of a room at the premises. The term was for a period of three months ending on 16 February 2000. The rental was $100 per week with three weeks rental paid in advance.

The appellant has joined the Tribunal as a party to the appeal. According to s.148 of the Act, the appeal is on a question of law. In my opinion, the Tribunal is not a necessary party to the appeal and should not be joined as a party. The Tribunal informed the Court, it would not participate in the appeal and would abide the result. Section 148(6) requires the appellant to notify the principal registrar of the appeal. This sub-section re-inforces my decision that the Tribunal should not be a party to the appeal.

As the appeal is on a question of law, it is my opinion that the appeal should be conducted on the materials before the Tribunal including the reasons and orders made. Counsel for the parties agreed to this course.

It is necessary to point out the appeal is from orders made and not findings of fact or reasons. The latter do provide the material to show error but the appeal is against the order.

On 30 November 1999, a dispute arose between the appellant and Mr Ganya. Mr Bandman was also present during the course of the altercation. Words were spoken. The appellant took steps to remove the belongings of Mr Ganya from the premises, and the police were called.

Not surprisingly as so often happens the versions of what took place given by the appellant and Messrs Ganya and Bandman are at variance.

Mr Francis-Wright for his part contends that he lawfully evicted Mr Ganya and then withdrew the eviction after discussions with Mr Ganya and the police. Mr Ganya stated that he did not wish to return to the premises. He left and Mr Bandman also left with him.

Messrs Ganya and Bandman gave evidence to the Tribunal to the effect that they were threatened and were unlawfully evicted from the premises. Unfortunately, the appellant was denied his opportunity to give his version to the Tribunal.

Experience shows that one story is good until the next story is told - Pontifical Society v. Scales [1962] HCA 19; 1962 107 CLR 9 at page 20 per Dixon CJ. Judicial officers should always bear that in mind when hearing a version of events, whether in the presence of the other party or not. Often, when the other party gives his or her version, it is different. The appellant was not given his opportunity to put the contrary version.

Messrs Ganya and Bandman then consulted the Tenants Union of Victoria.

The notices of appeal filed on behalf of the appellant after leave was granted by Beach J are unnecessarily prolix and verbose. The grounds can be summarised as follows:

(i) that orders were made against the appellant without service of any documents and without notice to him;

(ii) that the appellant in relation to a number of orders, was denied natural justice contrary to the Common Law and to the provisions of the Act primarily because of the facts that he was not given notice of applications nor was he given any opportunity to be heard and findings were made in his absence which he was later not permitted to contest;

(iii) that having reasonably made application to be permitted to obtain legal representation, was denied the opportunity to do so.

The appellant seeks orders from this court to the effect that the orders made against him by the Tribunal in each matter be set aside.

The orders appealed against were those made by Member Teh of the Tribunal who was sitting in the Residential Tenancies List. The orders were made on 9 December 1999 and 6 March 2000. In the Bandman matter, an order was also made on 2 December.

As the grounds of appeal raised questions of the alleged failure of the member of the Tribunal to comply with the Act and to comply with natural justice, it is unnecessary for the court to further consider the facts surrounding the dispute of 30 November 1999 or to seek to resolve the disputed facts.

This court is limited to the record of the proceedings before the Tribunal. The deponents on both sides of the record in this court have sought to place further evidence before the court concerning the dispute and other events which were not before the Tribunal. This court has made very limited use of the additional material.

The court has considered the evidence of the appellant concerning receipt of documents which confirm what was on the Tribunal's file and his evidence concerning discussions with an officer of the Tribunal which were in fact stated to the Tribunal on 6 March 2000.

The court has also noted the evidence of the appellant and Mr Ganya concerning a conversation on or about 8 December about the hearing on 9 December 1999.

Under the Act, a Rules Committee was established by s.150. It has power to make rules regulating the practice and procedure of the Tribunal. Rules have in fact been made and they are the Victorian Civil and Administrative Tribunal Rules 1998 - see Statutory Rule No. 87/1998 ("the Rules"). The Rules were amended late in 1988 - see Statutory Rule 93/1998. The amendment concerned what had to be included in the written application.

On 1 December 1999, an Application Form by a Tenant to the Tribunal was completed on behalf of Mr Ganya. He claimed -

He set out the details about the claim in which he asserted that the appellant had sworn and had indulged in abusive name-calling, invaded privacy, and "treating with a baseball bat." He stated he was not able to do his washing.

On the same day Mr Bandman also prepared or had prepared for him, a like application. His claim was for -

In his details of the claim, he asserted the landlord verbally abused him, that he tried to punch him and came at him with a baseball bat. He asserted that he accused him of everything that happened around the premises. He also asserted that the landlord had changed the locks and would not open a door for about half an hour.

Neither of the applications were served on the appellant who was described as "Kevin unknown" and his address was given as 567 Maroondah Highway, Croydon.

The Ganya application came on for hearing on 1 December 1999 before Member Teh, who noted that there was no appearance on behalf of the owner at 12.40 p.m. and adjourned the proceeding to the following day to be heard by him.

Mr Bandman's application came on later that day before the same member who noticed there was no appearance at 3.20 p.m. on behalf of the owner and he made a like order adjourning it to 2 December.

The non-appearance of the appellant is not surprising. He was not served with either application. He had no notice of the hearings.

The record of what Mr Teh decided is recorded in the document headed "Order." The reasons for an order formed part of it and the procedure adopted is to incorporate the reasons and orders in the one document. (See s.117(6)). I may interpolate here to doubt whether that is an appropriate procedure, when in fact orders are not made, to record findings in a document which is headed "Order." The evidence showed that they were not served on the appellant until they were posted on 24 December. He received them on 29 December.

There may have been urgency in respect of both applications because of the claim "To stop an eviction." The appellant had no notice of any application against him on 2 December 1999. It is clear that the urgency of any application had dissipated by 2 December because the record of the proceeding makes no mention of any application for an order stopping the eviction. Later evidence confirmed there was no urgency. Neither applicant sought an order stopping the alleged eviction.

On the following day, that is, 2 December, the Member heard what he described as "an ex parte application" on the sworn testimony of Mr Ganya. By this time it was noted the respondent's name was "Kevin Francis Dwight" and Mr Teh directed the principal registrar to amend the file to show the full name of the landlord as stated above, and that his address was, "467 Maroondah Highway, Croydon." The address was incorrect as was the name.

The same errors were made in respect to the application by Mr Bandman. The "order" form which was completed and signed by Mr Teh, records certain findings. Mr Teh set out the circumstances of the confrontation on 30 November 1999 and then opined the view that -

"11. In the circumstances, the respondent (i.e. the appellant) appears to have acted unlawfully, in that he had forcibly evicted the applicant contrary to s.273(1) of the Residential Tenancies Act 1997."

Section 273 is concerned with criminal offences. It is also noted the finding is not a final finding but a finding based on what Mr Teh described as "an appearance."

He notes that Mr Ganya is looking for alternative accommodation and intends to claim compensation. It is clear beyond all doubt at that point, that any urgency had gone and it is difficult to see on what basis Mr Teh thought it appropriate to proceed ex parte. He did not in fact, make any order in the Ganya matter on 2 December 1999. However, he completed an order form which set out his findings and signed it.

As I have already stated, I query whether this is an appropriate procedure taking into account that no order was made against the appellant. In saying that arguably an adjournment may constitute an order, but on any view, no order was made against the appellant on that day in the Ganya matter.

He adjourned that matter to 9 December and directed the principal registrar serve Mr Dwight with - "(a) a copy of these interim findings; and (b) notice of the resumed hearing date."

In the application brought by Mr Bandman, he also heard that ex parte and he ordered that Mr Dwight permit Mr Bandman to re-enter his room to collect personal effects, but noted that he was seeking compensation for unlawful eviction and further, that in the circumstances, "the respondent (the appellant) appears to have acted unlawfully in that he had forcibly evicted the applicant contrary to s.273(1) of the Residential Tenancies Act 1997."

Mr Teh also made the same error concerning the name and address of the appellant. He also directed the principal registrar serve a copy of the documents on the appellant. He adjourned the proceeding until 9 December.

The evidence revealed that the orders which set out the findings, were not forwarded in the Ganya matter until 24 December and were not received until 29 December by the appellant. The Bandman order was not received until 30 December 1999.

It would appear that the registrar of the Tribunal did send lettergrams to the appellant on 7 December 1999 informing him of the hearing date. There is no evidence on the Tribunal file showing that the documents were in fact served. The address given for "Kevin Dwight" was 467 Maroondah Highway, Croydon, and this was an incorrect address.

The evidence revealed beyond doubt that the appellant did not receive any documents or a notice of a hearing prior to 9 December. In particular, he never received a copy of the application forms filled in by Messrs Ganya and Bandman.

It appears that there was a telephone conversation some time around 8 or 9 December between the appellant and Mr Ganya, but the versions given of what occurred are in dispute. The appellant was told that there was going to be a hearing, but responded he would not attend any hearing until he had notice which should have been given pursuant to the Act and Rules. I may say that Mr Ganya's version was slightly different to that given by the appellant.

On 9 December, a further hearing did take place before the Tribunal constituted by Mr Teh in the Bandman matter and he noted that the appellant had refunded $300 of the applicant's bond and ordered the appellant to pay Mr Bandman $151.14 immediately for back rent and adjourned the application by Mr Bandman for compensation to a date to be fixed.

In the Ganya matter heard on the same day, in the order document, Mr Teh noted that the principal registrar was directed to serve Mr Wright with a notice of the resumed hearing and to amend the file to show the full name as "Kevin Francis Wright at 567 Maroondah Highway, Croydon." This was quite incorrect. Earlier an error was made in relation to the surname, and the address was wrong.

What Mr Teh has written in the first part of that order form on 9 December is quite wrong. This is confirmed by what he later wrote on the same document that the file be amended to record the correct name and address. He did set out the correct name and the correct address.

It is apparent that as at 9 December, Mr Teh appreciated errors had been made in relation to the appellant's name and the address. As I have said, this appears in paragraph 16 of that order document.

On that occasion he ordered the appellant to pay back to the applicant the bond money immediately, namely, $400. I may say there is some dispute as to whether that amount should be properly described as a bond. In any event, it would appear that the amount was $300. He also directed the principal registrar to give the appellant a copy of the order and serve him with a notice of the adjourned hearing.

Again, these findings and orders were made in the absence of the appellant and without notice to him. It follows also without having the opportunity to contest the findings or orders.

There is nothing in relation to either application which establishes that Mr Teh was satisfied that the appellant was properly served with any document. The fact is, he was not. It appears that Mr Teh proceeded on the basis of evidence given by Mr Ganya that he had had a telephone conversation with the appellant the day before and had stated he knew there was to be a hearing on the 9th. But the important issue of service of documents as required by the Act and Rules was evidently ignored.

The findings and orders made on that occasion were made in the absence of Mr Francis-Wright without notice to him, and it follows, without any opportunity to be heard.

It is necessary at this point to emphasise that in the order forms completed on 2 and 9 December 1999 in each matter, Mr Teh made findings of fact concerning the termination of the tenancies, based on the versions given by Messrs Ganya and Bandman.

Member Teh, in the later hearing, treated the findings as final and in the absence of an application to review under s.120 of the Act, not open to dispute.

A finding was made by the Tribunal that the appellant was liable to pay compensation without service of documents and notice of hearing and without the opportunity to contest same. The finding in each application according to Mr Teh was not contestable at the later hearing, even though it was made in the absence of notice to the party affected by it.

Some of the documents were received by the appellant on 29 December 1999. The Act gave him the right to apply for review of the order. (See s.120(1)) The application must be made within 14 days after he became aware of the order. (See Rule 4.18.) Time would have expired on or about 12 January 2000.

The appellant did not make any such application in respect to either proceeding. However, he has given evidence to this court and also told Mr Teh on 6 March, that he made a contact with a person called Raoul at the Tribunal and told him of the problems that he had encountered and that orders were made in his absence. This contact was made in mid-January and after the time for applying for review had expired. Nevertheless, it should be pointed out that under s.126, the Tribunal may extend time and do so on its own initiative.

The person called Raoul evidently informed the appellant it was unnecessary for him to seek a review as it was proposed to have a re-hearing and the orders would not apply. On that basis, the appellant did not make any application for a review.

On 16 February 2000, the Tenants Union, on behalf of Messrs Ganya and Bandman, wrote to the appellant setting out the details of the compensation claims to be made by its clients at the hearing which was to take place on 21 February 2000. On that date, Member Teh was not available and it was adjourned till 6 March.

The two applications came on for hearing before Member Teh on 6 March and Messrs Ganya and Bandman were represented by a Ms Power of the Tenants Union. I am informed she is not a lawyer but is a person experienced in appearing before the Tribunal in tenancy matters. The appellant attended without representation.

At a very early stage in the proceeding, he informed the member that findings and orders had been made against him without notice and without giving him an opportunity to be heard. The member took the view that since the appellant had not made any application to review the orders made, it was not open to him to question the orders and the findings of fact that had been made.

Mr Teh informed the appellant on a number of occasions that the findings and orders had been made and that all he was dealing with, was the quantification of the compensation.

The appellant protested and, indeed, protested earnestly and repeatedly, and stated that the findings were wrong and he did not have the opportunity to be heard, but Mr Teh stated the issues were closed.

In addition, the appellant during the proceeding, appreciating that he was not gaining anything, sought an adjournment to obtain representation and Mr Teh denied him that opportunity. It will be necessary to further consider what happened on 6 March. Fortunately, the proceedings were recorded, so there is transcript of what took place.

Mr Teh made orders for compensation in each proceeding. In the Ganya matter, he ordered the appellant to pay Mr Ganya the sum of $2,740 made up of travelling expenses, temporary accommodation, loss of income and compensation in the sum of $2,000 for unlawful eviction, breach of quiet enjoyment and inconvenience suffered in consequence.

In the Bandman matter, the appellant was ordered to pay Mr Bandman immediately the sum of $2,957.70, which was made up of travel expenses, temporary accommodation, loss of wages, subsequent loss of employment, and $2,000 compensation for unlawful eviction, breach of quiet enjoyment and inconvenience suffered in consequence.

The appellant is aggrieved by the orders made on 2 and 9 December 1999 and 6 March 2000 and has appealed to this court. As I have already stated, leave was granted to him by Beach J pursuant to s.148 of the Act.

There is no doubt the Tribunal is bound by the rules of natural justice. These would be implied at Common Law but it is unnecessary to consider the Common Law because the Act specifically states that the Tribunal is bound by the rules of natural justice. (See S.98(1a))

The rules of natural justice require that the Tribunal be impartial and unbiased and, secondly, that a person who may be affected by any decision or order made is entitled to have notice of the allegations made against him or her and a fair opportunity to be heard before a decision or order is made.

It is noted under s.98(4) that in certain circumstances the Tribunal may be empowered to depart from the rules of natural justice where the Act or some other enabling enactment so authorises. There is no suggestion in this appeal that the rules of natural justice were to be departed from in any way or to be minimised in any way.

In addition to that obligation, the Tribunal is required to act fairly. Section 97 provides -

"The Tribunal must act fairly and according to the substantial merits of the case in all proceedings."

Although the Tribunal must act fairly and is bound by the rules of natural justice, s.98(1) provides that it is not bound by the rules of evidence, it may inform itself on any matter as it sees fit and must conduct each proceeding with as little formality and technicality and determine each proceeding expeditiously.

Section 98(3) provides that subject to the Act, Regulations and Rules, the Tribunal may regulate its own procedure.

Although the Act requires a proceeding to be conducted with as little formality and technicality as possible, the fact is that the rules of natural justice require that parties to a proceeding be given a fair hearing. This is reinforced by s.102 which provides inter alia -

"(1) The Tribunal must allow a party a reasonable opportunity -

(a) to call or give evidence; and

(b) to examine, cross-examine, re-examine witnesses; and

(c) to make submissions to the Tribunal."

Competence of appeal

Mr Tudor who appeared on behalf of Messrs Ganya and Bandman to the appeal submitted that the appeal was incompetent because it was not open to appeal pursuant to s.148 of the Act on the ground of denial of natural justice. It was submitted the only avenue open was an application pursuant to the Administrative Law Act 1978 and the application in the present matter is not under that Act.

The argument proceeds on the basis that the Tribunal is referred to in s.4(4) of that Act which confines an application under that Act in respect of a proceeding in the Tribunal to grounds of either no jurisdiction or a denial of natural justice.

Mr Tudor submitted that it was clear from the reference in that Act that that was the only avenue open where an attack was made on the ground of inter alia denial of natural justice. He submitted a right of appeal found in s.148 is accordingly limited and it is not possible to have an appeal under s.148 of the Act if the ground is a denial of natural justice.

In order to make good his argument, it would be necessary for him to persuade this court that it was the intention of Parliament when it gave the general power to appeal with leave, that the appeal was so confined.

In my opinion there are no words in s.148 or any other part of the Act which supports such a contention. The right to appeal is with leave in relation to a question of law and there are no words in the section or the Act which restrict the generality of those words.

Further, the point was put to Beach J on the application for leave to appeal and he rejected it. I also reject the submission. In my view the appeal is competent.

It is clear that the applicant in a proceeding must serve a copy of the application upon the other party - see Rule 4.06 of the Rules. On the other hand, the duty is cast upon the Tribunal to give notice of a hearing to the parties - see s.99 - and the Tribunal is obliged to give copies of orders made - see s.116(2). It is noted that the notice for the hearing must be in writing.

It follows that Messrs Ganya and Bandman were obliged to serve copies of the applications they completed on 1 December 1999. They did not do so.

Under s.99, the principal registrar must give notice of the time and place for the hearing of proceeding to inter alia each party to the proceeding. As I have stated, the notice is to be given in accordance with the Rules and Rule 4.12 provides that the registrar must give notice of the time and place in writing in accordance with any other requirement of the Rules.

If the party is properly served with the notice of hearing, the Tribunal may proceed if that person fails to attend. However, it is important to notice the wording of s.99(2) which provides -

"(2) If a person including a party to whom notice has been given in accordance with the rules fails to attend, the hearing may be held in the absence of that person."

It is emphasised that the right to proceed in the absence of a party depends upon proof that "notice has been given in accordance with the Rules". The Tribunal should not proceed in the absence of the party if it is not proven that notice has been given. The evidence established beyond doubt that written notice was not given to the appellant for the hearings of the 1, 2 and 9 December 1999. It is clear in respect to the last hearing that the documents were sent to the wrong address. This appears from the file of the Tribunal. It is also apparent, in my opinion, that Mr Teh appreciated that there were problems in relation to the service.

The Tribunal is a creature of statute and its powers, duties, rights and obligations are to be found within the four corners of the Act which established it. Its powers may be express or implied.

Consistent with its obligations to act fairly and in accordance with the rules of natural justice, it does not have any general power to hear an application in the absence of a party who has not been served unless there is in fact a statutory power.

There is a statutory power but it is limited. The Act provides that the Tribunal may grant an interim injunction - see s.123 - and under s.123(4) may grant an interim injunction "whether or not it has given any person whose interest may be affected by the order an opportunity to be heard."

Consistent with its obligations to act fairly and to comply with the rules of natural justice, it would only be in exceptional circumstances that the Tribunal would grant an interim injunction and then to either restore the status quo or to maintain it pending a hearing involving all parties.

An interim injunction would be for a short period, and would only be granted in the absence of any party who was affected by it in cases of real urgency and necessity.

Counsel were unable to refer the court to any other provision which would entitle the Tribunal to make orders in the absence of a party who has not been apprised of the application and who has not been given the opportunity of being heard.

It is now necessary to trace through each hearing before the Tribunal.

Each applicant filed his application on 1 December 1999 and each were brought on before Member Teh, one presumes as a matter of urgency. The applications were not served on the appellant. The member adjourned the proceeding until the following day.

On 2 December, Messrs Ganya and Bandman gave evidence before Mr Teh. It is noted that Mr Teh treated the applications as "ex parte". It is very clear from the findings made by him on that day that neither applicant was seeking any order to stop the alleged eviction.

The order form completed and signed by Mr Teh on that day, sets out the findings that he has made. He asserted that he was of the opinion that Mr Dwight "appeared to have acted unlawfully". He noted that Mr Ganya was seeking compensation for disruption of his business and inconvenience and he adjourned the application to 9 December. He directed the principal registrar to amend the file which incorrectly stated the appellant's name and a wrong address.

The order form in relation to Mr Bandman also records findings. It is also noted it was an ex parte application. He ordered the appellant to permit Mr Bandman to re-enter his room for the purpose of collecting his belongings. He also directed the principal registrar to amend the file and orders were made in relation to the name and address as in the Ganya matter. He directed, in both proceedings, the principal registrar to serve Mr Dwight with a copy of the interim findings and a copy of the new date.

In my opinion, Mr Teh breached the rules of natural justice by proceeding in the absence of the appellant who had not received any documentation concerning the applications or any notice of any hearing. In my opinion, Mr Teh breached the obligations found in sections 97 and 98. Further, there was no power to hear the applications ex parte once it was clear, as indeed it was, that no interim injunction was being sought.

It is noted he only made an order in the Bandman matter which affected the appellant. As I said, arguably he made orders in the form of adjournments but they were not orders against the appellant.

On 9 December 1999, Mr Teh continued the hearing of the applications against the appellant. At that time, no documentation had been served on the appellant and the principal registrar sent the notice of the time and place for the hearing to a person called Kevin Dwight of 467 Maroondah Highway, Croydon. The correct address was 567 Maroondah Highway, Croydon.

It follows that there had been a failure to comply with s.99 of the Act concerning service and the right of the Tribunal to proceed in the absence of a party under s.99(2) is not available because written notice had not been given to the appellant. As I have stated, the Rules require that the notice be in writing.

By perusing the order forms completed in relation to the proceeding on 9 December, it is clear that Mr Teh appreciated an error had been made in relation to the name of the appellant in the address.

Further, there is no evidence in those order forms that Mr Teh was satisfied that any material had in fact been served upon the appellant and, in particular, notice of the proceeding under s.99.

There is evidence in the proceeding before this court that there was a telephone conversation between Mr Ganya and the appellant on or about 8 December in which mention was made of the hearing before the Tribunal on 9 December. It is an inference from what was said on 6 March 2000 that the Member Teh was apprised of that telephone call at the hearing on 9 December. Given the position as at the 9th, it is my opinion the member should not have proceeded on that day with the hearing.

First, any urgency in respect to the application had disappeared. Secondly, the applications filed by Messrs Ganya and Bandman had not been served on the appellant. Thirdly, it was apparent to Member Teh that the name of the appellant was incorrect as was his address. The Tribunal files show that the notice given by the principal registrar was sent to Kevin Dwight at the wrong address. The inference was overwhelming that the appellant had not received any documentation and hence there was non-compliance with s.99.

Mr Teh could not have been satisfied of service. In fact, he does not make a finding that he was. In my view, he was not entitled to proceed in the absence of the appellant. Section 99(2) was not satisfied.

Finally, the mere fact that there was some evidence that there was a discussion in which reference was made to a hearing before the Tribunal that the conversation took place on the previous day, was insufficient to persuade the Member Teh that the appellant had received proper notice of the applications against him. Indeed, a perusal of the lettergram on the file of the Tribunal shows that it was sent to the wrong address and given the errors that had been made, it is a reasonable inference that Member Teh must have been in considerable doubt as to the service of the relevant documents.

In my opinion, by proceeding in those circumstances, the member was not acting fairly, acted contrary to s.97, and breached the rules of natural justice contrary to s.98(1a).

The statutory right to conduct the proceeding informally ignoring rules of evidence and the practices of procedures applicable to courts of record, does not entitle the Tribunal to completely ignore the basic principles of natural justice which are designed to give a party affected by a decision the opportunity to be heard after being apprised of the allegations that are put against him and being given a reasonable opportunity to prepare himself.

This brings me to 6 March 2000 hearing. Mr Tudor submitted that there was no denial of natural justice on that occasion and that the Tribunal did act fairly.

The appellant went to the hearing in the belief he was entitled to contest the findings concerning eviction. He made that very clear at the outset of the proceeding. He raised it a number of times thereafter. Member Teh's response was the same throughout. He stated the appellant having not made any application to review the findings made earlier, was not entitled to contest those findings. The member repeated that many times. He said the sole issue was a quantification of compensation and he would hear the appellant in relation to that question and that question alone. At no stage did the member suggest that the appellant seek an extension of time to reopen the orders previously made pursuant to s.120.

In the light of what had occurred and in particular, the errors concerning service and the repeated protestations of the appellant, Member Teh should have given the appellant the opportunity to review the earlier orders. Fairness demanded that Member Teh should have assisted the appellant by drawing his attention to his rights, and I underline that, bearing in mind, what had taken place in December and in particular, the fact that Member Teh could not have been satisfied on 9 December that service had been effected.

As a general proposition, the parties are not entitled to be represented on an application before the Tribunal. The Tribunal may permit representation - see s.62. Taking into account the fact that the appellant was unrepresented, that there were real doubts about service of documents on him, which doubts must have been very apparent to Member Teh, that the appellant contested the findings relating to eviction and said so repeatedly and asserted he had no opportunity to be heard, that in those circumstances, Mr Teh should have appreciated that justice demanded that the question of eviction should reopened. At no stage did he seek to assist the appellant. Halfway through the proceeding, the appellant stated he wished to get representation and this was denied him. This was despite the fact that the tenants were represented by a person from the Tenants Union who was evidently a person who had had experience as an advocate in tenancy proceedings before the Tribunal.

One might be permitted to observe that in those circumstances, a user friendly tribunal where legal representation is discouraged may have adopted a more helpful approach to the concerns of the appellant especially bearing in mind that he had asserted he did not receive any document prior to findings being made against him.

In my opinion there is no doubt that the Tribunal has failed to act fairly in the proceeding, and has failed to comply with the rules of natural justice.

On any view the appellant has not had a fair crack of the whip and orders have been made against him and findings have been made without notice and without being given the opportunity to be heard.

One can not over-emphasise the importance of complying with the rules of natural justice and acting fairly. Except in the case of an interim injunction, the Tribunal must not proceed without notice against another party making findings and making orders and without giving that party an opportunity to be heard.

The Tribunal must, as a first step, where a party fails to attend, be satisfied that proper service has been effected on that person and that person does not propose to appear.

Mr Teh must have had considerable doubts on 9 December concerning service of the documents and notice of the hearing on the appellant. Indeed, he should have come to the view, in my opinion having looked at the file, that the documents were not served on the appellant. He should not have proceeded on that day in his absence. By doing so he made findings and orders which Mr Teh would not permit to be contested and in so doing, deprived the appellant of his basic rights according to natural justice.

The proceeding on 6 March was infected by the earlier denial of natural justice and the failure to act fairly on those previous occasions.

In light of my conclusions, it is unnecessary to consider whether the appellant had been denied natural justice by the refusal of the Tribunal to give him the opportunity of obtaining legal representation.

Section 62 does proceed on the assumption that a party to a proceeding has to seek leave to be represented by any person including a professional advocate. See s.62(1c). However, it appears fairly arguable that if leave is granted to a party to be represented by a professional advocate, then the other party has the right to be also represented by a professional advocate. See s.62(1b). In my opinion, even if there is no right, if one party is permitted to be represented by a professional advocate, then in compliance with the obligation to act fairly, the Tribunal should grant permission to the other party to be so represented. However, it is unnecessary for me to determine that question.

In conclusion I am prepared to make orders quashing the various orders that have been made in both proceedings and I propose to make the following orders.

As no orders were made on 2 December in the Ganya matter and also again I emphasise that this is an appeal against orders and not findings, I propose to make the following orders in the Ganya matter.

In Appeal No. 4901/2000 I make the following orders:

(i) That the appeal be allowed.

(ii) That the orders of Member Teh of the Residential Tenancies List of the Victorian Civil and Administrative Tribunal made on 9 December 1999 and 6 March 2000, be set aside, and in lieu thereof the court makes the following orders:

(a) that the application of Arnold Ganya to the Residential Tenancies List, Victorian Civil and Administrative Tribunal No. R199949374 be referred to a member sitting in the Residential Tenancies List, Victorian Civil and Administrative Tribunal other than Member G. Teh for directions and hearings;

(b) that the said application be heard in the Residential Tenancies List upon a date to be fixed by the Tribunal.

In the appeal against Brendan Bandman No. 4902/2000, I propose to make the following orders:

(i) That the appeal be allowed.

(ii) That the orders of Member Teh of the Residential Tenancies List of the Victorian Civil and Administrative Tribunal made on 2 December 1999, 9 December and 6 March 2000, be set aside, and in lieu thereof, the court makes the following orders:

(a) the application of Brendan Bandman to the Residential Tenancies List, Victorian Civil and Administrative Tribunal No. R199949375 be referred to a member sitting in the Residential Tenancies List, Victorian Civil and Administrative Tribunal other than Member G. Teh for directions and hearing;

(b) the said application be heard in the Residential Tenancies Act, Victorian Civil and Administrative Tribunal on a date to be fixed by the Tribunal.

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CERTIFICATE

I certify that this and the 21 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 14 February 2001.

DATED: this fourteenth day of February 2001.

Associate

Civil and Administrative Tribunal Act 1998

Civil and Administrative Tribunal Rules 1998

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