Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw.

The second public policy which requires adequate reasons is facilitation of the exercise of a right to appeal (or to apply for leave). Where the path of reasoning is unstated or difficult follow it is difficult to attack on its merits, because it is unclear what the merits of the reasoning are, whether relevant considerations were ignored and whether irrelevant considerations were taken into account.

Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Tribunal to give reasons for any order it makes in a proceeding other than interim orders.

Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection: ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 at [20] per Hargreave AJA with whom Ashley and Dodds-Streeton JJA agreed.[4]

Mere recitation of evidence followed by a statement of findings is insufficient to disclose a path of reasoning; indeed, it is ‘about as good as useless’: Hunter v TAC (2005) 43 MVR 143 [28], [37]. This is specifically so in relation to s. 117 according to Justice Kyrou, speaking extra-judicially.[5]

In that address, his Honour said:

‘In a nutshell, adequate reasons are reasons that clearly set out the factual and legal issues for determination, the conclusions on those issues and the thought process that has been applied in reaching those conclusions.’

‘VCAT’s reasons must be intelligible. Reasons are not intelligible if they leave the reader to wonder about the process of reasoning that has been followed’.[6]

Where evidence which is not inherently improbable and is uncontradicted is not accepted, decision makers are required to give reasons for non-acceptance: Hardy v Gillette [1974] VR 392, 395-6.

Decisions of VCAT have been set aside for a failure to give adequate reasons, notwithstanding the High Court’s caution against over zealous scrutiny of administrative decision makers in Minister for Immigration v Liang (1996) 185 CLR 259 and like admonitions.[7]

That caution must apply less forcefully to appeals from VCAT in common law misconduct prosecutions seeking suspension of a solicitor from practice than in a small claim or a planning question in the Tribunal. The proposition that the standard of reasons required of decision makers ‘can vary markedly with the context’[5] cuts both ways: where a tribunal is called upon to determine a quasi-criminal prosecution, seeking interference with a sole lawyer director’s entitlement to practise, it must rise to the occasion.

There is no reason why VCAT’s decisions in such a case, in which transcript is called for and written submissions ordered, and costs ordered against County Court scale should be of any lesser standard than those of a County Court judge, especially in light of the express obligation provided by s. 117.

The trend seems to be to require better reasons from VCAT more generally than might have been demanded in the first half of the last century: Caruso v Kite [2008] VSC 207 at [32] (Kyrou J).[8]

In professional conduct prosecutions in which findings of dishonesty are to be made, it is obviously important for reasons to make clear and careful findings about the state of mind of the allegedly dishonest person.[9]

[1] Secretary to the Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96, 102 at [23] per Buchanan JA with whom Ashley JA and Smith AJA agreed; Victoria v Turner [2009] VSC 66 [237]-[241]; Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 (15 October 2010) [67]-[69]; E Kyrou, ‘Adequacy of Reasons’ [2010] VicJSchol 24; Secretary to the Department of Justice v Yee [2012] VSC 447 at [90] (Kyrou J).

[2] Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J, with whom Fullager and Tadgell JJ agreed), re-stated by Rush J in Sun Alliance in Gray v Brimbank City Council [2014] VSC 13.

[3] See Stirling v LSC [2013] VSCA 374 at [63] et seq.

[4] They referred to Hunter v TAC [2005] VSCA 1 [21]-[22], Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 and Sun Alliance Ltd v Massoud [1989] VR 18-19. The first and third decisions were followed in a s. 148 appeal from VCAT by Rush J in Gray v Brimbank City Council [2014] VSC 13 at [37] (referring to [28] in Hunter) and [55]. Hunter was approved in Franklin was followed in Pham v Legal Services Commissioner [2015] VSC 671 (Bell J), another s. 148 appeal and on appeal by Redlich and Kaye JJA: Pham v Legal Services Commissioner [2016] VSCA 256 at [88]. Consider also Ta v Thompson [2013] VSCA 344 at [56].

[5] ‘Adequacy of Reasons’ [2010] VicJSchol 24.

[3] Secretary to the Department of Justice v Yee [2012] VSC 447 (Kyrou J), citing Commissioner of State Revenue v Anderson (2004) 24 VAR 181, 191 [33] and other authorities; LSC v Turner [2012] VSC 394 at [69].

[6] Quinn v LIV (2007) VAR 1 esp at [33] et seq, [42], [46]; Burgess v McGarvie [2013] VSCA 142 at [60] et seq.; LSC v Turner [2012] VSC 394 at [69] et seq.

[7] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [45].

[6] See also the following authorities which usefully summarise the NSW authorities: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [65], Palmer v Clarke (1989) 19 NSWLR 158 at 170 (Kirby P); Qushair v Raffoul [2009] NSWCA 110 at [52], followed in Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902.

[8] Consider Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [46], [108]-[109] and LSC v Brereton (2011) 33 VR 126 at [68] per Tate JA with whom the other judges agreed.

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