Alesci v Salisbury [2002] VSC 475

2. The application before Ms Burdon-Smith was made pursuant to s.120 of the Victorian Civil and Administrative Tribunal Act 1998. The order which the plaintiff sought to have reviewed was made on 22 April of this year by Ms Katherine Norman, another member of the Tribunal. It resulted in the plaintiff being ordered to make payments of money to the defendant. He sought a review of that order on the ground that he was not present at the time it was made and was not represented at the hearing at which it was made.

3. In her reasons for refusing the application, Ms Burdon-Smith reviewed the evidence and made certain findings of fact concerning the circumstances surrounding the plaintiff's non-appearance before Ms Norman on 22 April 2002. The most significant finding of fact was to the effect that the plaintiff took the application and notice of hearing which had been served on him to the office of his solicitors and left it there, and, as Ms Burdon-Smith found, "...believed that his representative would deal with it on his behalf and consequently did not attend." In her reasons for dismissing the plaintiff's application Ms Burdon-Smith said that she did not consider the plaintiff's explanation for his non-attendance constituted a reasonable excuse for not attending or being represented at the hearing.

4. Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 provides a mechanism for the reconsideration of a decision made in the absence of a party. It concentrates on the actions of the person affected by the order made in his or her absence. Whilst it might be argued that the acts of an agent, or in this case the failure to act of an agent, should be visited upon the principal, the defendant to this proceeding has chosen not to be present nor to be represented so that no argument to that effect was put. It may not provide an answer in any event. See Smith v Brown[1]; Anisiena v Crane Haulage Pty Ltd [2]. In the absence of argument I shall not consider the point further.

5. The fact of the matter is that Ms Burdon-Smith exonerated the plaintiff from any blame for failing to attend before Ms Norman by attributing to him the belief that his representative would attend and deal with the matter on his behalf. To proceed then to find that there was no reasonable excuse for not attending or being represented constitutes a conclusion which cannot be sustained on the findings of fact made.

6. Section 120 is a section which is to be construed liberally. It would be difficult, I think, to put forward a case where a blameless non attending defendant would not be entitled to a review of the order made in his or her absence. As I have said, Ms Burdon-Smith, in her findings of fact, exonerated the plaintiff. To then proceed to say that the entrusting of his legal representative with the conduct of the matter did not constitute a reasonable excuse, in my opinion was not sustainable. Saying that a conclusion is not sustainable is equivalent to saying that it was a finding or a conclusion which was not open to her to make. That such constitutes an error of law is beyond argument. I need refer only to cases such as S v Crimes Compensation Tribunal[3], Azzopardi v Tasman UEB Industries Ltd[4]; Federal Commissioner of Taxation v Broken Hill South Limited [5] and many others.

7. Mr Kiel who appeared for the plaintiff in this Court put a further argument to the effect that the reasons given by the member who decided the matter were inadequate, having regard to the statutory duty to provide reasons, and the legal obligation that those reasons render the decision made understandable. Although in a different context, Gray, J of this Court in Sun Alliance Insurance v Massoud discussed inadequate reasons in these terms: -

"The reasons will, in my opinion, be inadequate if: -

(a) the Appeal Court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done"[6]

8. As Gray, J said, if the primary decision maker does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

9. In this instance for the Tribunal to have reached a conclusion that it was not a reasonable excuse for the plaintiff to have entrusted this matter to his legal advisers without explaining why constitutes a failure to give adequate reasons for the decision.

10. As that ground did not appear in the notice of appeal and grounds of appeal in respect of which leave was granted by Master Wheeler I will give the plaintiff leave to amend his notice of appeal to include a ground that the Tribunal failed to give adequate reasons for its decision. I will give leave to appeal on that ground as well.

11. Section 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 permits this Court to make any order which the Tribunal could have made in the proceeding where the criteria required by s.120 exist. An order affecting a person's rights in the absence of that person should be set aside unless the interests of justice demand otherwise.

12. In this case it seems to me to be appropriate to set aside the order of the Tribunal constituted by Ms Norman on 22 April and order that the matter be heard de novo.

13. Mr Kiel sought, in the event that his client was successful, an order for costs. Much of the material filed in this case goes to questions which could not on any view be regarded as questions of law for the purpose of appeal to this Court from an order of the Tribunal. Accordingly, in my opinion it is just that his client be entitled to his costs, but not all of them and accordingly I will order that the defendant who has not attended this hearing, nor has been represented, pay 65 per cent of the plaintiff's costs. The orders that I will make are accordingly as follows:

1. That the plaintiff have leave to amend his Notice of Appeal by adding a ground to the effect that the Tribunal failed to give adequate reasons for its decision.

2. That the plaintiff have leave to appeal on that ground.

3. That the appeal from the order of the Victorian Civil & Administrative Tribunal of 28 May 2002 dismissing the plaintiff's application be upheld and that order be set aside.

4. That the decision of the Tribunal of 22 April 2002 be revoked.

5. That the application originally heard on 22 April 2002 be re-heard by the Tribunal constituted other than by Ms S.M. Burdon-Smith.

6. That the plaintiff's costs of this application be taxed and paid as to 65% by the defendant.

7. That this order be drawn up and signed by a Judge pursuant to Rule 60.04 of the Rules of Civil Procedure.

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[1] [1974] VicRp 99; [1974] VR 842

[2] [1974] VicRp 81; [1974] VR 670

[4] (1985) 4 NSWLR 139

[5] [1941] HCA 33; (1941) 65 CLR 150

[6] [1989] VicRp 2; [1989] VR 8 at 18