No ADR fees for VCAT

A Regulatory Impact Statement was issued by the Victorian Government in December 2012 which recommended an increase in application fees, and also the imposition of fees for alternative dispute resolution (that is, mediations and compulsory conferences).

Click here for a copy of the Regulatory Impact Statement.

I attended a BDPS function yesterday evening and I was informed that the Attorney-General Robert Clark wrote to BDPS stating that the government will not implement alternative dispute resolution fees.

Click here for a press release that I just spotted which notes that ADR fees will not be imposed.

VCAT must set out its reasons: Dimatos v Coombe & Ors [2011] VSC 619

The matter of Dimatos v Coombe & Ors [2011] VSC 619 was an appeal from VCAT to the Supreme Court of Victoria before Beach J. The matter in VCAT concerned an allegation by the applicant that the respondents had defectively serviced the applicant's Torana motor vehicle, causing loss and damage.

Beach J noted that although the judgment in VCAT was voluminous and consisted of 292 paragraphs, the 'path of reasoning' for making the particular findings was not apparent. Beach J noted that the VCAT judgment set out the evidence without reference to the issues, and then the VCAT judgment went on to make findings of fact based on the evidence without providing the reasons for these findings of fact.

At [20] Beach J set out a summary of the authorities concerning the statutory requirement in s117 VCAT Act 1998 for VCAT to give reasons:

20 Having made final orders dismissing the substantial parts of the appellant’s claims, the tribunal was required to give reasons.[2] Whilst the extent of the reasons in any case will depend upon the circumstances of the case, the reasons should identify the issues in dispute; deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion.[3] Failure to expose this path of reasoning is an error of law.[4] Further, as has been said on a number of occasions, in general, the mere recitation of evidence followed by a statement of findings, without commentary as to why the evidence is said to lead to the findings, is “about as good as useless”.[5]

Beach J held that the reasons in the matter were deficient as no path of reasoning has been exposed. Beach J held that whilst VCAT recited the evidence, little or no explanation was given as to why a particular piece of evidence, or all of the evidence, is said to lead to the critical findings leading to the final result (at [21]):

21 Unfortunately, the reasons in the present case are deficient. No path of reasoning has been exposed. The failure to expose a path of reasoning is, as I have said, an error of law. Accordingly, the appeal must be allowed, and the orders made below must be set aside. Whilst the judgment below contains a substantial recitation of the evidence given, little (if any) explanation has been given as to why any particular piece of evidence (or the evidence as a whole) is said to lead to the critical findings leading to the final result. Much of the present problem may have been avoided if there had been a concise statement of the issues in dispute (including the parameters of each dispute) at the commencement of the judgment with the evidence (conflicting or otherwise) then being analysed by reference to those issues. 

Owners corporations - part 1: what do they do?

I was recently involved in a dispute between an owners corporation, an owners corporation manager and a lot owner. The lot owner was claiming that the owners corporation manager had not acted in good faith when carrying out its duty as a manager, and that the owners corporation had breached its duty of care towards the lot owner. The dispute related to repairs to the water services for the lot owner, those water services being part of the shared services of the owners corporation. The lot owner claimed damages in relation to those breaches.

This is the first part of a short series on owners corporations. The series is intended to give the basics of owners corporations, discuss what their duties are and what the consequences are if the duties are breached.

The discussion below is a general discussion introducing owners corporations, what they do and how they delegate their functions.

VCAT and claims for lost time

I was recently involved in a matter where a self represented applicant to a proceeding in the Victorian Civil and Administrative Tribunal (VCAT) had a substantial claim for damages and a substantial claim for lost time in preparing the matter for hearing. This is a fairly typical claim for a self represented litigant in VCAT.

I have included below a discussion of a claim for lost time in VCAT.

Turner v Hidayat [2011] VSC 202 - Implied power to reinstate proceeding in VCAT

The matter of Turner & Anor v Hidayat [2011] VSC 202 (Turner) was an application for leave to appeal in the Supreme Court of Victoria before Kyrou J from a decision made in the Victorian Civil and Administrative Tribunal (VCAT). In Turner, the plaintiffs were borrowers under a loan secured by a property. The plaintiffs defaulted under the loan and applied to VCAT for relief under the Consumer Credit (Victoria) Code.

The plaintiffs failed to attend a compulsory conference listed by VCAT because their solicitor wrote the wrong date in his diary. For reasons which Kyrou J could only speculate on, VCAT listed a directions hearing after the compulsory conference (on that day) and ordered that the proceeding against the defendant be struck out with costs. The plaintiffs applied to set aside the orders made and the parties entered consent orders where the proceeding would be reinstated only if the plaintiffs vacated the property by 25 August 2010. Because of the financial difficulties being experienced by the plaintiffs, they vacated by 30 August 2010. The Tribunal confirmed the proceeding was struck out and did not reinstate the proceeding on further application.

In granting leave to appeal, Kyrou J discussed the implied power to reinstate proceedings. I have discussed this in detail below.