Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building)  VCAT 1479 The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member. The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants in person.
Seachange Management Pty Ltd filed proceedings in VCAT against Bevnol Constructions & Developments Pty Ltd in relation to defective work under a building contract. Bevnol counterclaimed, and one of the respondents to Bevnol’s counterclaim applied to have a Senior Member of the Tribunal disqualified on the basis of perceived or actual bias. The respondent’s allegation of bias relied on the Senior Member’s conduct in the interlocutory stages of the proceedings. In particular, the respondent relied upon the Member’s language and tone towards the respondent, the Member’s refusal to allow the respondent to pursue certain points and the lack of assistance afforded to the respondent by the Member.
The application for disqualification was dismissed. The respondent then applied to reconstitute the Tribunal dealing with the substantive proceeding, pursuant to s 108(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
The Tribunal held that the discretion to reconstitute the Tribunal in a particular proceeding will be exercised where a party has a reasonable apprehension that they will not receive a fair hearing before the Tribunal, as presently constituted. This required consideration of the nature of a fair hearing and, in particular, the Tribunal’s duty to provide assistance to litigants in person.
The Tribunal held that it had a general duty to ensure a fair hearing, and that the provision of a fair hearing was at the very heart of the Tribunal’s obligations to the parties who appear before it. This general duty was given effect by various provisions of the VCAT Act, under which the Tribunal was required to act fairly and according to the substantial merits of the case, and was bound by the rules of natural justice.
The Tribunal found that the impartiality of the Tribunal was central to a fair hearing and, therefore, any allegation of actual or apprehended bias would be relevant to a decision to reconstitute a Tribunal. In relation to apprehension of bias, the Tribunal held that a Member would be disqualified if a fair-minded observer might reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question before the Tribunal.
The Tribunal further noted that the obligation of the Tribunal to assist litigants in person constituted an important part of the Tribunal’s general duty to ensure a fair hearing. This obligation imposed a positive duty on the Tribunal to give such assistance as is necessary to ensure the proceedings are fair. The application of the duty will depend on the litigant (including the litigant’s intelligence and understanding of the case), the nature of the case and the institutional framework governing the relevant court or tribunal. Further, the duty to assist may extend to issues of law as well as procedure. However, the judge or tribunal member must be careful not to become the advocate of a self-represented litigant and must keep in mind the need to afford procedural fairness to other parties.
The Tribunal held that although the respondent had studied law and had occasionally received assistance from a solicitor acting for Seachange, these considerations did not absolve the Tribunal from providing such assistance to the respondent as was necessary to ensure a fair hearing.
The Tribunal allowed the respondent’s application to reconstitute the Tribunal, on the basis that a fair-minded observer might reasonably apprehend that the Senior Member in question would not bring an impartial mind to the resolution of the respondent’s dispute. This was due to:
- the unacceptable tone and language used by the Senior Member towards the respondent;
- the Senior Member’s repeated failure to accord the respondent procedural fairness, including repeated interruptions of the respondent’s submissions and the fact that the Senior Member gave no assistance to the respondent in developing certain interlocutory applications and submissions; and
- the cumulative effect of the numerous comments made by the Senior Member about the respondent’s need to attend hearings and his lack of representation.
Relevance to the Victorian Charter
The Tribunal’s decision stated that the Charter has reinforced the duty of courts and tribunals to provide assistance to litigants in person. Other than this, the Tribunal’s decision did not consider the application of the Charter.
However, the Tribunal’s decision provides useful guidance to the substance of the right to a fair hearing, contained in s 24(1) of the Charter. This section provides that parties to both civil and criminal proceedings have the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. In particular, the Tribunal’s decision indicates that a party’s right to a fair hearing will be breached where a fair-minded observer might reasonably apprehend that the relevant judge or member might not bring an impartial mind to the resolution of the particular question. This may be established by evidence of past proceedings before the judge or member, with a focus on their language, comments and general treatment of the relevant party.
Further, the Tribunal’s decision emphasised the centrality of the duty to assist litigants in person to the right to a fair hearing. The Tribunal demonstrated that although the application of the duty will depend on the circumstances of the case, the scope of the duty is potentially broad and may require the relevant judge or member to take significant positive steps to ensure the proceedings are fair.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2008/1479.html.
Edwina Chin is a member of the Mallesons Stephen Jaques Human Rights Law Group