Respondent: Mr N Mazzeo of Lennon Settle, Solicitors.

1. These matters, which have something of a vexed history, came on for hearing before Member McBride on 11 September 2002. For the sake of brevity, I shall refer to the parties as "Barnett" and "Falvo". I understand that Maria Barnett has been the principal spokesperson for the Barnetts. Previously, the proceedings issued first in time (Barnett v Falvo) had been before Member Eggleston on 4 April 2002, Member Langton on 27 May 2002, and Member McBride on 2 July 2002. The application before Member Langton related to a re-hearing. He ordered that Falvo pay to Barnett the sum of $120 by way of costs. On 2 July 2002, the matter was before Member McBride, was adjourned, and on this occasion Barnett was ordered to pay Falvo $180. It would seem that Barnett subsequently spoke to a member of the VCAT staff, who effectively advised that payment of the $60, being the difference between the two, would achieve the result of satisfying both orders. This, apparently, was done.

2. When the matter came on before Member McBride on 11 September 2002, she struck out Barnett's complaint on the basis that the $180 had not been paid. She was not prepared to accept an attempted argument by Barnett that the difference - $60 - had been paid in accordance with advice received from a person at VCAT. Accordingly, Barnett's complaint was struck out.

3. Falvo's counterclaim was also struck out, this being on the basis that no invoice had ever been sent relating to the amount counterclaimed by Falvo.

4. On 17 September 2002, Barnett wrote to the President and Principal Registrar complaining of what had occurred. By letter dated 16 October 2002, the Honourable Justice Kellam, President of VCAT, wrote to Barnett indicating that he would treat the letter of 17 September 2002 as an application for re-instatement and stating that the matter would be fixed before me on 23 October 2002 to enable submissions to be made in relation to the matter. The President also wrote to Falvo advising of these developments. Such letter also indicates that there is no doubt but that Barnett did speak to a member of the VCAT staff who did offer advice that the forwarding of a cheque of $60, being the difference between the two orders, was the correct way to proceed.

5. Against this background, the matter came on for hearing before me on 23 October 2002. On that occasion, Mr Mazzeo appeared on behalf of Falvo. The arguments advanced by Mr Mazzeo, could be summarised as follows. Barnett's letter of 17 September 2002 seeks that an investigation be undertaken. It is not a request for a re-hearing. Re-hearings are permissible only in the circumstances prescribed by s.120 of the Victorian Civil and Administrative Tribunal Act 1998. That section is not applicable because the person or persons seeking a re-hearing in fact did appear at the original hearing. Further, there are rules under the Act which set out procedures applicable in the case of an application for a re-hearing. There has not been compliance with those rules. The only other option is that of an appeal pursuant to s.148. No such appeal has been instituted.

6. In my opinion, the arguments advanced by Mr Mazzeo would have greater weight if Member McBride had, for example, dismissed the complaint. They may well be valid if there had been a hearing on the merits. It is quite clear from the transcript which has been provided that neither of these things occurred. There was no hearing on the merits. Member McBride struck out, as opposed to dismissed, the application upon learning that the costs order which she had made on 2 July 2002 had, according to her, not been complied with.

7. The President treated the letter of Barnett as an application for re-instatement. Falvo was advised of this. It is clear from the letter dated 18 October 2002 from Falvo's solicitors, Lennon Settle, to the President that Falvo was aware of the nature of the proposed hearing on 23 October 2002. Accordingly, it does not seem to me that it could be alleged that there was any element of surprise relating to the application heard by me on 23 October 2002.

8. Further, and whilst this is hardly a matter that requires comment from me, the decision of the President to treat the letter of 17 September 2002 as an application for re-instatement of the proceedings seems to me to be highly appropriate and logical. In proceedings such as this, legal representation is rare and indeed is only available by the grant of leave. Barnett has not been represented at any stage. Falvo was not represented before Member McBride on 11 September 2002. Precise legal documents and arguments could hardly be anticipated.

9. The point to be made is simply this. Barnett, clearly dissatisfied with what had occurred before Member McBride, wrote to the President and the Principal Registrar. The President treated the letter as an application for re-instatement and fixed a date for the issue to be ventilated. Falvo was notified of this. When the matter came on for hearing before me, there was no question of surprise or of uncertainty as to what was happening.

10. The arguments advanced by Mr Mazzeo centred to a considerable extent upon the operation of s.120 of the Act and the rules relating to procedures pursuant to that section. However, what is before me is not an application for re-hearing pursuant to s.120. That section would not seem to me to have application. It is operative in the situation where persons did not appear and were not represented when orders were made. Both Barnett and Falvo were present when the orders were made.

11. Rather, this is an application for re-instatement of a proceeding which has been struck out and where, quite clearly, there has been no hearing on the merits. Further, having perused the file and the transcript of what occurred on 11 September 2002, it seems to me that the striking out was misconceived. In saying this, I am in no way sitting in appeal. I am simply expanding upon the point that there was clearly no hearing on the merits. The matter was somewhat hastily struck out before the merits were touched upon at all.

12. Section 97 provides that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings. That procedure did not even commence in the present situation. No final order was made - see, for example, DPP v Sabransky (2002) VSC 143 and the cases referred to therein. It is apparent that a matter which has been struck out in a court is capable of being reinstated. There is no basis to say that in the regulation of its own procedure pursuant to s.98(3) of the Act this principle cannot be applied to proceedings before the Tribunal. Section 97 not having been complied with and no final order having been made, it is my opinion that the Tribunal both can, and should as a matter of natural justice order re-instatement of the matter so that it can be heard on its merits. I might add that, if the Member was concerned that the costs order had not been complied with, it seems to me that a step that could have been taken would have been to make an order pursuant to s.109(6) to the effect that the proceeding could not continue until there had been compliance with the costs order. Again I do not say this in the sense of sitting in appeal on the order of Member McBride, but rather to present my view which may or may not be of assistance if a similar situation should occur again.

13. The counter claim by Falvo against Barnett was also struck out by Member McBride on the same occasion. Again there was no hearing on the merits. The matter seems to have been struck out because no prior demand for monies had been made. I am uncertain as to why this should result in the striking out of the action. As I understand the situation, if there is an order for re-instatement of the claim, Falvo would seek that the counterclaim also be re-instated. For the same reasons as set out above, I am of the view that the Tribunal both can and should also re-instate the counterclaim.

14. Accordingly, it is ordered that both claim and counterclaim be re-instated. Whilst I make no order in relation to the disposition of the matters, it seems to me desirable that they should be heard by a Member other than the Member who struck them out on 11 September last.