How can I obtain leave to appeal from VCAT on a question of law?

Associate Justice Zammit of the Supreme Court of Victoria today determined an application for leave to appeal from VCAT on a question of law under section 148 of the VCAT Act.

The application for leave to appeal arose from a hearing at VCAT at which the landlords of retail premises in Glen Waverley sought to set aside terms of settlement of a retail leasing dispute on the basis of undue influence, duress and a breach of the rules of natural justice.

In Wong v Hook Line and Sinker Fish and Chips Pty Ltd, Her Honour dismissed the application on the basis that the only matters about which a review was sought were questions of fact. Relying on S v Crimes Compensation Tribunal [1998] 1 VR 83, Her Honour noted (at paragraph 21):

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Whether a Tribunal arrived at a conclusion that was not open to it is a question of law. A question of law can arise if a decision was based on no evidence or was so contrary to the evidence that it was perverse.

Her Honour concluded that (although the proposed draft notice of appeal was unclear) the proposed grounds of appeal could be distilled to raise this as the proposed basis of the application for leave to appeal.

After analysing the written reasons for decision of Senior Member Riegler at VCAT, Her Honour concluded that no error was shown, as each finding of fact made by the Senior Member was based upon evidence.

As well as complaining about the findings of fact, the applicants also complained that the Senior Member had not warned them that he had concerns about the medical evidence being relied on by the applicants at the trial before VCAT. Her Honour concluded (at paragraph 25):

It is a matter for each party to assess how they will present their evidence and to understand the burden of proof they have.

In her written reasons for dismissing the application for leave to appeal, Her Honour accepted my submission that a fundamental problem with the landlords' claim was that the evidence before VCAT showed that the tenants were completely unaware of Mrs Wong's alleged medical condition. Accordingly, even if VCAT was to accept the existence of the medical condition, the tenants could not have taken unconscientious advantage of a condition they were unaware of at the time.

Her Honour concluded that:

I do not consider that a proper question of law is raised in the proposed Notice of Appeal.

This is not a situation of simply poor drafting, but rather there is no substance to the questions of law or the grounds of appeal raised in the proposed Notice of Appeal. Each ground seeks to directly challenge the Member's factual findings, in circumstances where there was evidence before the Member on each and every issue.

Conclusion
Seeking leave to appeal from a decision of VCAT is an onerous task, that requires careful analysis of the proposed questions of law that will be raised in the appeal (if leave is granted). By dressing up questions of fact as questions of law, you will not escape the onus that is cast to establish that in fact VCAT has made an error of law.