VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Civil Division 
Civil Claims List	
vcat reference No. C718/2020	
CATCHWORDS	
Applicant’s application for reconstitution of the Tribunal under section 108 of the Victorian Civil and Administrative Tribunal Act 1998 – application having no legal basis – applicant’s criticisms of the presiding Member reflect the applicant’s ignorance of legal proceedings and lack of objectivity	

APPLICANT	Vera Ojaimi also known as Rachelle Antonious	
RESPONDENT	Your Local Plumbing Group Melbourne Pty Ltd (ACN: 609 402 600)	
WHERE HELD	Melbourne	
BEFORE	Deputy President I Lulham	
HEARING TYPE	Applicant’s application for reconstitution of the Tribunal under section 108 of the Victorian Civil and Administrative Tribunal Act 1998	
DATE OF HEARING	23 August 2021	
DATE OF ORDER	19 October 2021	
CITATION	Ojaimi v Your Local Plumbing Group Melbourne Pty Ltd (Civil Claims) [2021] VCAT 1227	

Order

1.	The principal registrar is directed to amend the register, so that only one applicant appears and she is named as “Vera Ojaimi also known as Rachelle Antonious”.
2.	The applicant’s application for reconstitution of the Tribunal under section 108 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.
3.	As the proceeding is part heard before another Member, having commenced on 9 July 2021, the principal registrar is directed to list the proceeding for further hearing before that Member on a date to be fixed.

I Lulham
Deputy President			

APPEARANCES:		
For Applicants	Ms V Ojaimi, the first named applicant in person	
For Respondents	Mr D Chen, company officer	

Reasons

1.	In this proceeding the applicant claims $705.43 from the respondent. The applicant owns a shop in Brunswick. The respondent is a plumbing company. The $705.43 is a deposit / callout fee / assessment fee paid by the applicant to the respondent in relation to plumbing works which did not eventuate. The applicant is claiming a refund, and the respondent is resisting the claim.
2.	Even though a relatively small sum is in dispute, there is some complexity in the evidence being presented, especially as to the location of pipes in and around the applicant’s shop. That evidence includes photographs taken by the respondent’s special camera inside pipes – the authenticity of which is disputed by the applicant. One issue in the case is whether the photographs are of relevant pipes, or relate to another property altogether. There is no denying that this is a heated dispute, as the applicant does not allege that the respondent has merely misquoted or made a mistake. Instead, she alleges that the respondent has deliberately committed acts of deceit. This places a higher burden of proof on the applicant than the usual standard in a civil claim.
3.	The Member hearing the case on 9 July 2021 gave the parties a considerable period of time to present their respective cases; much more time than might be expected in a ‘standard’ dispute over a few hundred dollars, if there is such a thing. In that context it is of concern that after almost 3 hours of hearing time the applicant applied for reconstitution of the Tribunal. This caused the hearing to be stopped. The application for reconstitution was eventually listed for hearing before me on 23 August 2021. That hearing lasted for almost 2 hours. 
4.	In perusing the file before and after the hearing on 23 August 2021, I noted some procedural irregularities relating to the identification of the applicant, and I have taken the opportunity to correct them in paragraph 1 of this Order. 
5.	Applications for reconstitution of the Tribunal are made under section 108 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”). The section does not set out the grounds on which the application can be made. Leaving aside situations where reconstitution is required because, for example, the presiding Member becomes unavailable due to illness or retirement, applications are usually made on the ground that there is an apprehension of bias on the part of the Member. 
6.	Sections 97 and 98(1) of the VCAT Act require the Tribunal to act fairly and to afford the parties natural justice. One of the two limbs of natural justice are that the Tribunal must be free from bias when making its decision. 
7.	In legal proceedings the concept of bias encompasses “actual bias” – where the decision-maker has something at stake in the case, for example by being a part owner in a business which is a party – and, much more relevantly in practice, “apprehended bias”. A well-known, if not commonly used, cliché is that “justice must not only be done but must be seen to be done”, which points to the importance of the public’s perception of matters. 
8.	In Christian Youth Camps Ltd v Cobaw Community Health Services Ltd, the Court of Appeal said that apprehended bias arises, regardless of the view of the decision-maker, where in all the circumstances the parties or the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the proceeding. What is reasonable is to be considered from the perspective of a reasonable or fair-minded observer with a fair understanding of all relevant circumstances.
9.	 In Livesey v. New South Wales Bar Association the High Court held that when two judges in a case had rejected a person’s evidence and been critical of her credibility and credit, they could not hear a subsequent case in which that person was a witness. Whilst there was no concern that the judges were actually biased, a fair-minded observer might reasonably doubt that the question involved in the subsequent case could be dealt with by their Honours without bias by reason of prejudgment. The issue was the appearance, and not the actuality, of bias by reason of prejudgment. 
10.	Regrettably the application for reconstitution in the case before me was made without any apparent regard for the need to have a legal basis. 
The background to the application
11.	The applicant, who before today has been named in the heading to VCAT documents as two separate individuals, sues the respondent for $705.43. This makes the proceeding a “small claim” within the meaning of the VCAT Act. The Tribunal endeavours to deal with small claims with a minimum of interlocutory steps, balancing the interests of efficiency with affording the parties a fair hearing. 
12.	In her description of the claim, under the heading “About the problem” in the initiating Application, the applicant alleged the following:
i.	On 16 January 2020 respondent was engaged to check a blocked sewage pipe at the rear of the applicant’s land which contains the shop.
ii.	A plumber, Jared, inspected the site and advised that there was a dislodged trap. He stated that installing resin lining would be the way to fix the blockage. He quoted $2,100.00 plus GST. The applicant accepted the quote.
iii.	The plumber who attended to do the work four days later was not Jared, but Shawn. He called the applicant to the site, and said that there was a blockage away from where Jared had identified the blockage. Shawn said that all the pipes were old ceramic pipes that needed replacement and that 4 metres of lining would have to be installed at a cost of $2,100.00 per metre.
iv.	Because in 2016 the applicant had had the ceramic pipes replaced with PVC, which she disclosed to Shawn, the applicant formed the view that Shaun’s conduct “was deceitful and (that) he was attempting to rip off” the applicant.
v.	The applicant immediately contacted the respondent and advised that she did not wish to proceed with the work.
vi.	The respondent has refused to return the applicant’s deposit.
vii.	The applicant obtained advice from another plumber, who advised against lining the pipes. That plumber said that lining the pipes would make things worse, by narrowing their diameter.
13.	So, from the initiating document in this proceeding the applicant has alleged that the respondent engaged in deceit and misleading conduct. There are multiple allegations of fraud, criminality, imprisonment and the like in documents subsequently filed by the applicant. 
14.	The proceeding was managed by the Tribunal’s registry as a “small claim”. It sent the parties a Notice of Hearing, with a hearing date of 26 February 2021, and a standard form Order dated 10 December 2020 setting out a timetable for the filing and service of important documents.
15.	The applicant filed Points of Claim on 3 January 2021 as required by that Order, which were consistent with the description in the Application form. Some additional allegations contained in the Points of Claim were that:
i.	Before the events of 16 January 2020, on 14 January 2020 Yarra Valley Water had attended the rear of the applicant’s property and had carried out sewage works, on land controlled by Yarra Valley Water and not on the applicant’s land.
ii.	When Jared attended the applicant’s property on 17 January 2020, the sewage pipe was clear and unblocked. A camera revealed a slight dislodgement of the pipe and Jared stated that even though there was no blockage of the water flow, a blockage would appear shortly unless the dislodgement was fixed. That was the work which the respondent was engaged to perform.
iii.	When Shawn called the applicant to the site on 21 January 2020, her husband and his friend attended. Shawn told them that he had already inspected all sewerage pipes at the rear of the property, being about 15 m of pipes, using his camera. Shawn showed them photos on his mobile phone, which he said showed that terracotta pipes had shifted because of tree roots. Shawn said the cost of necessary work would be about $14,000.00.
iv.	Yarra Valley Water had first attended on 12 January 2020 when a bad smell was reported. By 21 January 2020 the smell was no longer apparent. No blockage was detected on the applicant’s property. [Para 9] “(Jared’s) initial diagnosis was false and deceptive and so was (Shawn’s) diagnosis”. 
16.	The allegation in paragraph 9 somewhat escalated the dispute, as the original description of the claim seem to convey that the applicant was satisfied with Jared’s diagnosis, but she only claimed that Shaun was engaged in deceit.     
17.	The respondent filed Points of Defence dated 15 January 2020, attached to copies of various documents. In summary, these assertions were made in the Points of Defence. I refer to the paragraph numbers used in the document:
1 On 17 January 2020 one Rachelle Antonious contacted the respondent and reported a blocked sewer.
2 The respondent sent out a qualified plumber to do an inspection and assessment, and to provide advice regarding repair options. Rachelle Antonious asked that plumber to put a CCTV camera down the drain to identify the issues causing the blockage.
4 The respondent quoted $242.00 to use the CCTV camera, and that quote was orally accepted.
5 After that inspection the respondent advised Rachelle Antonious that there was a dislodgement in the drain “at the back right hand side of the property near the bird shed”. It quoted $2,100.00 plus GST to “reline … terracotta pipe to repair the dislodged section of the drain”, allowing 1-3 m.
7 That quote was accepted in writing by Bassam Jaime on behalf of Rachelle Antonious  job number 22283.
8 Either Bassam Jaime or Rachelle Antonious paid a deposit of $705 .43 by credit card 
11 On 21 January 2020 Shawn from Pipesafe attended the site to do the quoted work.
12 “In the course of re-cameraing the drain before the relining works, further cracks were identified in the sewer drain, caused by tree roots entry on joints on the old pipe and debris inside the drain, resulting in a new quote being prepared for the additional works – job number 22248”. A written quote with six CCTV images was sent to Rachelle Antonious; that quote was for $7,920.00 including GST and it allowed for the supply and installation of 3-4 m of bladder inside the drain covering the affected areas of old broken sewer terracotta pipe.
13 – 17 That quote was sent by email at 1:19pm on 21 January 2020, and at 1:57pm on 21 January 2020 the applicants said they did not want to proceed. The applicants confirmed this at 3:28pm and in doing so asserted that they had agreed to job number 22283 but not to job number 22248. The applicants sought a refund of $465.43, which they calculated as the deposit of $705.43 less the $240.00 callout fee.
18 On 23 January 2020 the applicants told the respondent that in 2016 they had replaced terracotta pipes with PVC pipes, and that they were convinced that Shawn had been misleading them.
19 On 23 January 2020 the respondent emailed the applicant, attaching photos generated from Shawn’s CCTV footage. The respondent confirmed that the blocked pipes were terracotta. The respondent wrote, “The stage I reline is still owing as we have already commenced this job with the jetting of the drain and will be resending the invoice to you shortly. This job has been quoted by fully qualified plumbers with warranty guarantees. The total cost of the job was given upfront and approved by yourself prior to any work being scheduled or materials ordered. We act quickly once deposits are paid and the organisation start straight away”.
20 The respondent would not return the deposit. It also relied on clause 19 of its standard terms and conditions which provided for forfeiture of a deposit in the event of cancellation. Finally it asserted that the first applicant was not a party to the contract.
18.	On 22 January 2021 the applicant wrote to the Tribunal, disclosing that Rachelle Antonious is the applicant Vera Ojaimi, and that Bassam Jaime is a co-owner of the property.
19.	The hearing listed for 26 February 2021 was adjourned to 5 March 2021, and the Member who presided on that day converted the hearing to a directions hearing. That Member listed the case for a three hour hearing to be held on 9 July 2021. It is apparent that the respondent disputed the assertion that Rachelle Antonious was the same person as Vera Ojaimi: the Member joined Rachelle Antonious as second applicant but noted in her Order that the joined applicant could be removed by the Member who presided at the hearing. The Member also substituted Your Local Plumbing Group Melbourne Pty Ltd for the originally named respondent Priority 1 Plumbing and Electrical Services Melbourne. The Member ordered the applicants to file and serve on the respondents copies of all of the relevant documents, and gave leave to the respondents to file and serve Amended Points of Defence and copies of all of the relevant documents.
20.	A Senior Member of the Tribunal made Orders in Chambers on 26 March 2021 and 19 May 2021. The first extended some dates under the timetable Order of 5 March 2021, and the second recorded that the applicants had sent the Tribunal multiple videos which were disjointed and difficult to follow and were prejudicial to the respondent in their current form. The Senior Member ordered the applicants to file and serve a physical copy of all video material by 9 June 2021. The hearing date of 9 July 2021 was confirmed.
21.	The hearing commenced on 9 July 2021. I will refer to the presiding Member at this hearing as “the third Member”.
22.	During that hearing the applicants orally made an application that the Tribunal be reconstituted under section 108 of the VCAT Act. The effect of that application, if successful, would be to remove the third Member from the proceeding. It is this application for reconstitution that was heard by me on 23 August 2021.
23.	The third Member made an Order on 9 July 2021 clarifying the name of the respondent, in that she recorded that ‘Priority 1 Plumbing and Electrical Services Melbourne’ was merely a business name owned by Your Local Plumbing Group Melbourne Pty Ltd. Her Order also recorded that the application for reconstitution had been made, and she directed that the file be referred to the Head of the Civil Claims list to determine how the application for reconstitution should be dealt with.
24.	On 11 July 2021, the applicant emailed the Tribunal confirming that she had made the application for reconstitution.
25.	When the registry referred the file to me under the Order of 9 July 2021 I made an Order on 30 July 2021 which listed the application for hearing on 23 August 2021; provided that if the applicant proposed to rely on any aspect of the hearing conducted on 9 July 2021 she was to file and serve either a transcript marked to identify those parts which were relevant to the reconstitution application, or alternatively a recording plus a document identifying relevant times during the hearing at which the relevant passages took place; and that by 16 August 2021 the respondent was to file and serve any reply.
26.	When the matter came on for hearing before me on 23 August 2021 it was clear that the applicant had not filed either a transcript or recording.
27.	A respondent to an application for reconstitution is an unusual position, in that the application goes to the administration of justice. Parties are not entitled to forum shop. Even if an application for reconstitution was consented to, it would not necessarily result in an Order for reconstitution being made.
28.	At the beginning of the hearing I gave the applicant the opportunity to seek an adjournment and an extension of time so that she could comply with the Order of 30 July 2021. The applicant said she would prefer to proceed with the hearing. The respondent said that it was content to proceed with the hearing. I made clear to the parties that if they elected to proceed with the hearing of the application for reconstitution, they could not change their mind and seek an adjournment and a subsequent hearing. Both parties acknowledged this.
29.	The hearing then proceeded with the applicant referring to the recording that she had obtained – and which she had not served on the respondent – and identifying what she said were the relevant passages.
30.	In substance the applicant’s lengthy and detailed submission was that the third Member did not demonstrate to the satisfaction of the applicant that she understood the evidence. Where the applicant, referring to particular times during the hearing, said that the third Member asked questions of a witness for clarification – particularly in relation to photographs of the applicant’s property which had been tendered to identify pipes – the applicant took those questions as proving that the third Member was confused.
31.	In substance the respondent’s submission – albeit made without the benefit of having been served with the recording, as required by the Order of 30 July 2021 – was that the third Member had not made any findings or reached any conclusions at the point where the applicant sought reconstitution. The respondent submitted that the applicant had constantly interrupted the third Member during the hearing, and had also acted inappropriately by repeatedly accusing the respondent of fraud and criminal behaviour. 
32.	In her submissions before me, the applicant said that:
a.	the third Member kept telling the applicant that she wanted to see the evidence;
b.	the third Member said that she was not an expert in plumbing, which in the applicant’s view required the third Member to withdraw from the case;
c.	looking at a photograph of a pipe taken internally, the third Member said to the respondent’s representative Mr Chen that it appeared to be a PVC pipe, and Mr Chen said it was terracotta;
d.	during the hearing the third Member paraphrased the applicant’s claim, but she did not paraphrase the respondent’s defence;
e.	at one point in the hearing the third Member did not let the respondent’s officer, Mr Chen, speak;
f.	the applicant does not believe Mr Chen’s evidence, and the third Member should have immediately rebutted Mr Chen’s evidence but did not do so; 
g.	the applicant wanted Mr Chen’s evidence to be stopped because it is hard to sit in a hearing when you disagree with the other party;
h.	at a point where it was apparent that the applicant and Mr Chen were giving inconsistent evidence, the third Member said that deciding whose evidence to prefer was a matter for the Member; 
i.	the applicant felt that the third Member was prolonging the hearing; and
j.	the third Member said to the applicant words to the effect, ‘you may believe something but that does not prove it’. 
33.	None of these points support the application for reconstitution. It should not be necessary to explain to a litigant that a Member’s desire to see the evidence, to listen to a witness’s evidence rather than immediately rebutting it and stopping the witness from speaking, and drawing a self-represented litigant’s attention to the need to prove allegations are not grounds for complaint. The parties are not judges in their own case.
34.	Section 98(1)(d) of the VCAT Act provides that the Tribunal – in other words the third Member, presiding at the hearing – must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the law and a proper consideration of the matters before the Tribunal permit. The Member conducts the hearing. The Member is entitled to ask questions of parties and witnesses, to see the evidence, and to allow the parties to comment on photographs. The obligation to act fairly, and the requirement under section 102 of the VCAT Act to allow all parties a reasonable opportunity to give evidence and to cross examine their opponent, will obviously result in a party having to listen to their opponent, and more often than not in a contested hearing, to hear evidence with which they disagree. 
35.	I am surprised that one of the applicant’s complaints is that the third Member is said to have told Mr Chen to stop speaking on a particular issue. The submissions made by the applicant say much more about the applicant’s ignorance of legal proceedings and lack of objectivity than they do about the third Member’s conduct of the hearing.
36.	I have no hesitation in dismissing the application for reconstitution.
37.	The matter will be returned to the third Member for completion of the hearing. The applicant is fortunate that the Tribunal is not empowered to award costs in this small claim. On the other hand, the Tribunal is experiencing delays in being able to allocate hearing dates as a result of the impact of Covid 19, and unfortunately the parties may find that they must wait a considerable period before the hearing can be reconvened by the third Member.

I Lulham
Deputy President