VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
residential tenancies DIVISION
residential tenancies LIST	
VCAT REFERENCE NO. R2020/15448	
CATCHWORDS	
Victorian Civil and Administrative Tribunal Act 1998 – s 108 – whether Tribunal should be reconstituted given VCAT member’s negative view of the credibility of the applicant and the respondent as witnesses in previous proceedings between them.	
APPLICANT	Maureen Doyle	
RESPONDENT	Robert Bourne	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Proctor	
HEARING TYPE	Hearing by telephone	
DATE OF HEARING	25 August 2020	
DATE OF ORDER and written reasons	4 November 2020	
CITATION	Doyle v Bourne (Residential Tenancies) [2020] VCAT 1226	
OrderS

1.	Under section 108 of the Victorian Civil and Tribunal Act 1998, the Tribunal is reconstituted for the purpose of this proceeding.
2.	A directions hearing by telephone is to be scheduled in this proceeding before any member of the Tribunal, in order to make directions as to the further hearing of this proceeding.

Ian Proctor
Deputy President			

APPEARANCES:		
For Applicant:	In person	
For Respondent:	Mr A. Sheed-Fink, Solicitor	

Reasons
Background
1	Ms Maureen Doyle (the Applicant) seeks reconstitution of the Tribunal under section 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), such that VCAT Member Blair Ussher no longer hears her application in this proceeding.
2	In this proceeding, Ms Doyle, claims to have, as landlord, entered into a residential tenancy agreement with Mr Robert Bourne, as tenant. She seeks possession and termination orders on the basis of unpaid rent for the “Powlett Street Property” under sections 548 and 549(2)(i) of the Residential Tenancies Act 1997 (Vic) (RT Act).
3	When on 16 July 2020 she brought the reconstitution application, VCAT Member Ussher was to hear Ms Doyle’s application at a one-day hearing on a date to be fixed.
4	The 16 July 2020 reconstitution application also sought reconstitution of the Tribunal in VCAT proceeding, R2020/13360 Doyle v Bourne. This concerned the “Ardcloney Drive Property”. Ms Doyle claimed there was a residential tenancies agreement between her, as tenant, and Mr Doyle, as landlord. Her application was under section 73 of the RT Act for urgent repairs.
5	As far as Ms Doyle knew on 16 July, Member Ussher had on 24 June 2020 heard this application concerning the Ardcloney Drive Property and his decision remained reserved.
6	However, unknown to Ms Doyle, because the decision had not reached her, on 3 July 2020 Member Usher dismissed her Ardcloney Drive Property application. He found no residential tenancy agreement existed between the parties – see Doyle v Bourne (Residential Tenancies) [2020] VCAT 758 
7	With Ms Doyle’s application concerning the Ardcloney Drive Property dismissed on 3 July 2020, reconstitution was not possible because reconstitution may not be sought when an application has been decided.
Reconstitution application in this proceeding
8	Ms Doyle’s reconstitution application came to be based on two reasons.
9	First, Ms Doyle contends that given the negative view Member Ussher has formed as to her credibility in the other proceedings, a fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the questions the Tribunal is required to decide in this proceeding.
10	Second, her reconstitution application focused on:
Member Ussher directly contacted one of the Parties prior to the hearing on 24 June 2020 to allegedly obtain information. That Party chose not to attend the Hearing and Member Ussher did not disclose the details of the private phone conversation or the information he had gleaned from the conversation. The member had no cause to make direct contact with a Party to the proceeding outside of the Hearing date.
11	This is a reference to Member Ussher, in the course of conducting the June VCAT hearing by telephone, in the context of the COVID-19 restrictions where VCAT was conducting virtually all residential tenancies hearings by telephone (which remains the case), telephoning Mr J Downey, who was trustee in bankruptcy for Mr Doyle, with the bankruptcy discharged in August 2017.
12	While third, she was highly critical of Member Ussher’s decision in Doyle v Bourne concerning the Ardcloney Drive Property, as reconstitution cannot be used to achieve a de facto review or a de facto appeal, I do not address this here.
13	Mr Bourne opposes the reconstitution application. He submitted that reconstitution should not occur unless there is good reason for doing so, in part referring to State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) [2005] VCAT 2512.
14	Morris P. said in part (at [25]):
From time to time proceedings will occur in the tribunal which determine a question concerning particular land or a particular matter and then be followed by another proceeding concerning the same land or the same matter. As a general practice I believe there is merit in the same tribunal being appointed to hear the subsequent matter. This not only promotes efficient case management, but also it is in the public interest by promoting consistent decision making. The fact that the member or members appointed to hear the second proceeding will have formed views as a result of the first proceeding does not mean that they are incapable of bringing an impartial mind to bear in determining the second proceeding. Judicial decision making involves repetition. It often occurs that persons before a court have previously been before that court, or issues before a court have previously been before that court. The administration of justice would not operate satisfactorily if it was sufficient to disqualify a judge to point to the fact that the judge had previously dealt with a person or decided an issue that was to be re-ventilated.
15	Submissions of behalf of Mr Bourne also cited the decision of Croft J. in Bendigo and Adelaide Bank Ltd v Redmond [2018] VSC 458. His Honour refused an application that he recuse himself on the basis of previously decided cases by him deciding a question of law which the applicant proposed to argue in the case before him (see below).

16	Mr Bourne also submitted that given Member Ussher had previously been critical of both Ms Doyle and him as witnesses, there will be no basis for an independent lay observer to conclude in this proceeding, Member Ussher would favour the evidence of one over the other.
Member Ussher’s view of the parties’ credibility
17	In Doyle v Bourne concerning the Ardcloney Drive Property, Member Ussher summarised Ms Doyle’s and Mr Bourne’s evidence concerning the creation, or not, of a residential tenancy agreement between them.
18	He reached the following view of their credibility (from [63]):
I formed a very poor view of the credibility of both parties.
Counsel for Mr Bourne submitted that his client had given direct and responsive answers to questions put to him and that his conduct in that regard was in stark contrast to that of Ms Doyle.
Amongst these direct responses, however, was Mr Bourne’s concession that he had misled the Tribunal, in the related proceeding, on the central issue in this application and had similarly deceived the ATO to secure a tax benefit to which he was not entitled.
Ms Doyle, similarly, regarded the truth as neither fixed nor eternal. I could not help but notice that, in the related proceeding she swore, on her oath, that her daughter, Ms Habermann, was Mr Bourne’s landlord for the Powlett Street property whereas she now claims that she is Mr Bourne’s landlord for that property and that she is owed rental arrears in the order of $67,000.
I found that Ms Doyle could give no detail of her conversations with Mr Bourne concerning the arrangements for the transfer of the Ardcloney Drive property and the purchase of the Powlett Street property, despite the significant value of these assets. Her evidence consisted of very broad, conclusionary statements.
Furthermore, Ms Doyle was incapable of giving responsive answers to simple and direct questions. She prevaricated and rambled on at length to avoid giving a responsive answer.
Further, Ms Doyle failed to disclose some important matters. For example, she failed to mention that Mr Bourne was living with her in the Ardcloney Drive property in 2010/2011 and was, indeed, residing at the property when the storm damage occurred. I have no doubt that, by her reticence and prevarications, Ms Doyle was fully aware of the inconsistencies and improbabilities contained within her testimony.
19	Member Ussher found (from [70]) that a written tenancy agreement between the parties concerning the Ardcloney Drive Property made on 1 November 2011, provided by Ms Doyle was a sham. He said (at [84]):
On balance, I find that the tenancy agreement was a sham. For the reasons set out in paragraphs 74 to 83 (inclusive) above, I conclude that the tenancy agreement did not record the true nature of the dealings between the parties. Specifically, I find that:
•	the parties intended that Ms Doyle would have the benefit of the Ardcloney Drive property on the basis that she would pay the mortgage loan and all other expenses connected to the maintenance of the property;
•	that a sham tenancy agreement was created by Ms Doyle and Mr Bourne for the purpose of giving to third parties (the ATO and Centrelink) the appearance of the existence of legal rights and obligations different from the actual legal rights and obligations which bound the parties. This was done so that Mr Bourne and Ms Doyle could each obtain extra benefits which neither of them were, in reality, entitled to. I consider that there is no other reasonable inference open to the Tribunal.
•	as the tenancy agreement is a sham, Ms Doyle has no entitlement to bring this proceeding before the Tribunal.
20	This was the second time Member Ussher had decided a proceeding against Ms Doyle’s family.
21	VCAT proceeding R2019/35901 Habermann v Bourne concerned an application by Ms Habermann, Ms Doyle’s daughter, against Mr Bourne concerning the Powlett Street Property. Ms Habermann sought possession of the property, allegedly rented by Mr Bourne, and an order that Mr Bourne pay rent owed of $48,028.81. Member Ussher dismissed the application. In part, he regarded Ms Habermann’s claim that she, as landlord, had entered into tenancy agreement with Mr Bourne, as tenant, to be a recent invention. 
22	Ms Doyle appeared at the VCAT hearing supporting her daughter. Member Ussher found her evidence, “most unsatisfactory” (at [67]), and, the evidence called by Ms Habermann, “unreliable (indeed, invented)” (at [86]). He regarded Mr Bourne’s evidence as “the far more probable version of events”, although, “somewhat guarded” ([78] and [79]) – see Habermann v Bourne (Residential Tenancies) [2020] VCAT 95.
Decision
23	Section 108 of the VCAT Act says that at any time before the conclusion of the hearing of a proceeding, a party may apply to VCAT for reconstitution for the purposes of the proceeding. The application must be heard by a presidential member of the Tribunal. If a presidential member after hearing submissions from the parties decides the Tribunal should be reconstituted, VCAT’s President must reconstitute the Tribunal. If the Tribunal is reconstituted, the Tribunal member who then hears the proceeding may have regard to any record of the proceeding, including evidence previously given.

24	As said in the Annotated VCAT Act [VCAT 108.80]:
Often, reconstitution applications are based on an assertion apprehended bias. Ordinarily, apprehended bias is stated in the terms used by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 adapted to apply to VCAT: whether a fair-minded lay observer might reasonably apprehend that the tribunal member might not bring an impartial mind to the resolution of the tribunal is required to decide.
25	In Bendigo and Adelaide Bank, Croft J refused a reconstitution application on the basis he was dealing with a question of law only, not fact or judgement as to witness credibility. With the following reference to Livesey v New South Wales Bar Association, he indicated the position would be different if was called on in the case he was hearing to make findings as to the credit of a witness where in a previous case he had made findings against the credit of the same witness.
26	He said (at [15]):
… findings of law, although assisted by parties’ submissions, are objective statements of the state of the law and are not limited by those submissions in the same sense. As a result, the manner in which courts determine legal and factual issues are distinct, and so too is the significance of prior determinations of legal and factual issues for the purposes of considering allegations of apprehended bias. That this is the position is confirmed by the following unanimous statement of the High Court in Livesey v New South Wales Bar Association:
It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded lay observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
27	Here, Ms Doyle’s application is partly based on an assertion of apprehended bias, due to Member Ussher’s view concerning her credibility as a witness.
28	In my view, concerning this case, a fair minded lay observer might entertain a reasonable apprehension of bias by reason of prejudgement if Member Ussher continues to hear this proceeding after he has in the two previous proceedings expressed strong negative views about the credit of Ms Doyle, whose evidence will be of significance in this case.
29	While I do not doubt that if he continued to hear this proceeding, Member Ussher would bring an impartial mind to deciding this proceeding, that is not the test. 
30	I reject the submission on behalf Mr Bourne that given Member Ussher’s adverse findings against both Ms Doyle and Mr Bourne, there is no basis that a fair-minded lay observer would conclude that he would prefer the evidence of one of them over the other.
31	Ms Doyle is the applicant in this proceeding. She is again attempting to prove the tenancy agreement exists between her and Mr Bourne, this time with her as the landlord and Mr Bourne as the tenant. Any doubt as to the parties’ credibility, works against her more than against Mr Bourne.
32	I have considered a further submission by Mr Bourne, that reconstituting the Tribunal will involve evidence concerning Powlett Street and dealings between Ms Doyle and Mr Bourne, being given again. Member Ussher briefly summarised such evidence in his Doyle v Bourne decision. While unfortunate, avoiding appearance of bias outweighs what inefficiency will arise. Neither necessity nor special circumstances (as referred to in Livesey) require that Member Ussher continue to hear Ms Doyle’s application.
33	While it need not be decided given the above conclusion, for completeness I reject the submission that Member Ussher acted unfairly in telephoning the trustee in bankruptcy, in the absence of Ms Doyle, such that an apprehension of bias may arise. It appears Member Ussher telephoned to ask whether the trustee had an interest in participating in the proceeding. In the relatively early days of VCAT holding hearings by telephone, it was not practical for all parties to be involved in all conversations in the course of a hearing, particularly where a party called indicated he or she did not wish to participate.
Next step in this proceeding
34	With the Tribunal reconstituted, with a one-day hearing previously scheduled, it is appropriate that a VCAT member hold a directions hearing to understand the scope of the full hearing and any directions required beforehand. That member will likely then hear and decide the application.

Ian Proctor
Deputy President