Two men litigated a case over $10,000 in VCAT’s Civil List before a sessional member. As per the norm in that list, they were unrepresented. That Civil List is a place a world away from the proceedings you read about in the law reports. I must say I like the idea of an accessible tribunal where people can get the catharsis of a judicial determination, without the expenditure on legal fees which is impossible for most people. And I like to think that there is a class of case where the quality of legal representation which can be obtained for a price which is proportionate to the amount at stake is in fact such that the diligent and ordinarily intelligent litigant who is all over his or her case, and may have sought out some legal advice along the way, is likely to do better himself than with the kind of representation he can afford. It is a tough job being a member down there. All sorts of legal problems get thrown at them and they are expected to churn through them in a fraction of the time a Court would take, and give ex tempore decisions. Judges in superior courts have an easier time because counsel present relatively recognisable legal theories of disputes in a relatively predictable way. Arguments devised by people who do not think within the same structures that experienced lawyers do throw up odd ideas the appraisal of which is difficult for the very reason that they are odd.
But it is important that the Civil List actually apply the law, even if it dispenses with its more technical excrescences, and review by superior courts from time to time (incredibly rare, if you look at the statistics) remains important. Justice Habersberger considered that justice in one case had got so rough that the appellant deserved another go, and set aside VCAT’s decision: Leon Holdings Pty Ltd v O’Donnell [2009] VSC 430. The rules of evidence may not bind the tribunal, his Honour said, but whatever rules are adopted in relation to evidence, they must be applied even handedly. When the member allowed one man to tender hearsay evidence without demur but then refused to hear the other man’s hearsay evidence despite the absence of any objection by his opponent, she created a perception of bias:
’72 It was up to the Tribunal whether or not to allow hearsay evidence. But, in my opinion, whatever course was adopted, it had to be even-handed and treat both parties the same. I consider that the Member did not do this when she refused to listen to Mr Flinkier’s hearsay evidence about what Mr Black said, after she had received without demur the hearsay evidence from Mr O’Donnell about what he was told by Mr Lindburgh. Although the latter evidence was really irrelevant, the Member gave no indication that she was rejecting it. The important point is that because of the way in which the Member handled the hearsay evidence issue, the appearance was given that she was not treating both parties in the same way. Thus, I consider that a fair minded lay observer might reasonably conclude that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of Mr O’Donnell’s claim when she treated Mr Flinkier and Mr O’Donnell so differently with respect to the giving of hearsay evidence.’
