Victorian Civil and Administrative Tribunal|2007-09-19

The application to re-open the Tribunal's order dated 16 May 2007 pursuant to section 20 of the Victorian Civil and Administrative Tribunal Act 1998 is refused.

(given orally at the hearing and subsequently revised)

The Tribunal notes that the permit applicant has advised that they are currently overseas and will not be available until after 23 December 2007. The Tribunal is not prepared to put this matter on hold until that time. In the circumstances the Tribunal assumes that the permit applicant will appoint someone to represent them at the hearing. If this is not the permit applicant's intention they should advise all parties in writing without delay.

The notice of hearing was also sent to Mr Geoffrey Ince, who has been acting on behalf of Ze Dong Tan by email.
There was no appearance by or on behalf of Ze Dong Tan at the hearing.
There are a number of reasons relating both to jurisdiction and substantive merits why this application to re-open the Tribunal's order should be refused.
The non appearance of Ze Dong Tan or anyone representing her is the first reason. This is despite the explicit advice provided by the Tribunal that an appearance would be necessary to support the application under section 120. Second, it is not fair to expect that the Tribunal should postpone consideration of this matter until mid-2008. The applicants for review were entitled to have their proceeding dealt with in a timely way. If Ze Dong Tan was serious about pursuing her application to reopen the order refusing to grant a permit for the satellite dish, she should have had regard to what arrangements would be made to contest the application for review if she was going to be overseas and unable to attend in person.
Finally on the merits, I am not satisfied that Ze Dong Tan had a reasonable excuse for not attending or being represented at the mediation and I do not consider it is fit that the Tribunal's order of 16 May 2007 be revoked or varied.
There is a further reason why this application to re-open the order should be refused. Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 refers to a person not appearing or not being represented at the hearing at which the order was made. In Raspa v Port Phillip CC[1] Justice Morris found that a hearing did not include a mediation. He said:

[13] A legal issue which arises is whether section 120 is available in the context of the order made by Member Cimino. This is because section 120 is available when a person does not appear at "the hearing at which the order was made". The word "hearing" is not defined in the VCAT Act, although there is a Division of the Act (Division 7 of Part 4) which is devoted to "Hearings". By contrast there is another Division (Division 5 of Part 4) which is devoted to "Compulsory conferences, mediation and settlement". In Al-Hakim v Monash University (Mackenzie DP, 30 July 1999) the tribunal found that the word "hearing", in the context of a provision in the Equal Opportunity Act the equivalent of section 92 of the Act, should be read broadly to include any hearing before the tribunal in relation to a matter. Notwithstanding that the expression "a hearing" is a broad one, I am not satisfied that it extends to an order made by the tribunal under section 78(1)(g) (in relation to a mediation) or under section 93 where settlement is achieved through mediation. Whatever the scope of the word "hearing", it does not extend to the use of these powers in relation to a mediation.

I am therefore satisfied that it is not open to Ze Dong Tan to make an application under section 120 because the order was not made at a hearing, which she did not attend, but rather at a mediation.

Civil and Administrative Tribunal Act 1998

Appleby v Moonee Valley CC [2007] VCAT 1662 (19 September 2007)

Appleby v Moonee Valley CC [2007] VCAT 1662

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Judgment (8 paragraphs)

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Appleby v Moonee Valley CC [2007] VCAT 1662 (19 September 2007)