Guss v Aldy Corporation Pty Ltd & Anor (Civil Claims)  VCAT 912 (1 May 2008) In this recent decision of the Victorian Civil and Administrative Tribunal, s 32(1) of the Charter was used to reject the previous interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
The dispute between the applicant and respondent related to the marketing of an apartment in the Melbourne Docklands area. In 2005, the applicant claimed compensation from the respondent for loss allegedly caused by the respondent’s misleading and deceptive conduct. In the course of the proceedings, an order was made directing a compulsory conference between the parties. The applicant failed to attend the second day of the conference. In the applicant’s absence, Levine SM dismissed the application with costs, pursuant to s 87 of the Act.
The applicant sought to have her application reopened pursuant to s 120 of the Act. Section 120 permits a person in respect of whom an order is made to apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.
The respondent argued that the compulsory conference was not a ‘hearing’ within the meaning of the Act, and therefore that the application did not satisfy the first requirement of s 120. Inter alia, the respondent submitted that:
- the Act distinguishes a ‘compulsory conference’ from a ‘hearing’ in certain headings and sections; and
- commentary on the Act suggests that an order made under s 87 is not an order made at a ‘hearing’, and therefore s 120 does not apply.
Vassie SM granted the application for review and rehearing under s 120, taking the view that a ‘hearing’ for the purposes of s 120 includes a compulsory conference when an order is made under s 87.
Vassie SM referred to s 83(2) of the Act, which states that the functions of a compulsory conference are:
(a) to identify and clarify the nature of the issues in dispute in the proceeding;
(b) to promote a settlement of the proceeding;
(c) to identify the questions of fact and law to be decided by the Tribunal; and
(d) to allow directions to be given concerning the conduct of the proceeding.
Vassie SM articulated three reasons why a compulsory conference should be considered a ‘hearing’ for the purposes of s 120. First, the making of orders under s 87 at a compulsory conference involves the exercise of judicial functions (namely, in deciding what orders are appropriate under s 87, the presiding Member will usually be required to receive evidence). Second, s 120 is a ‘remedial’ provision, and should thus be given a liberal construction.
The third reason was grounded in s 32(1) of the Charter. Section 32(1) states that, ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.
Vassie SM observed that the Charter enshrines the right to a fair hearing (as set out in s 24), and cited a passage from the House of Lords decision in Grimshaw v Dunbar  1 QB 408, which ‘encapsulated what is meant by a “fair hearing” of a proceeding as a whole’:
Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie, that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs.
On this basis, a narrow interpretation of s 120, under which compulsory conferences are not considered ‘hearings’, would leave the party in question with no recourse other than an appeal. This outcome is not ‘comparable with the right enshrined by the Charter to a fair hearing of the proceeding’. Vassie SM also observed that two earlier VCAT decisions (involving the narrow interpretation of s 120) must be distinguished on the basis of the Charter.
This decision appears to be the first instance of a court or tribunal using s 32(1) of the Charter to overturn the previous interpretation of a statute. The decision may invite other courts and tribunals to actively use s 32(1) in the same way.
It is interesting to note, however, that Vassie SM did not consider whether a narrow interpretation would be a ‘reasonable’ limit on the s 24 Charter right.
This decision is available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2008/912.html.
Jayani Nadaraj, Human Rights Law Group, Mallesons Stephen Jaques