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This VCAT decision records an application by the permit holder, BCSP 5622, to re-open two Tribunal orders under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). The first order sought to be re-opened was the Tribunal's substantive decision on 22 January 2009: the application had been struck out for non-attendance at the scheduled hearing and, as recorded, a planning permit issued in the terms of the responsible authority's Notice of Decision (Reasons first order [2], [4]). The second order to be re-opened was a later costs order dated 22 April 2009, made on the papers after the strike out, directing the applicant to pay costs to the responsible authority (Reasons second order [3]).

The Tribunal member (Dalia Cook) heard evidence and affidavit material, reviewed the Tribunal file and the correspondence between registry, parties and representatives, and applied s120. The file showed that a notice of hearing had been sent to the applicant on 22 September 2008 (Reasons first order [3]); on 22 January 2009 registry staff telephoned and were told the applicant thought the hearing commenced at 3:00pm rather than 2:15pm and would attend at 3:00pm; the Tribunal adjourned until after 3:00pm but the applicant did not attend and no request to withdraw was received (Reasons first order [2], [5]-[6]). The Tribunal struck out the application under s76, reserved costs and subsequently a permit issued in the terms of the Notice of Decision (Reasons first order [4]).

On the re-opening application, the Tribunal refused to re-open the substantive strike out order because the applicant did not demonstrate a reasonable excuse for non-attendance and because re-opening would be futile given the permit had already issued (Reasons first order [7]). The Tribunal allowed re-opening of the costs order because the responsible authority's costs claim, submitted on 14 April 2009, did not appear to have been provided to the applicant and the applicant had not been afforded an opportunity to address costs before the order was made; the Tribunal considered that procedural fairness required the applicant to be given an opportunity to respond (Reasons second order [1]-[4]; Orders 2-4).

Why the court decided this way

The Tribunal's reasoning proceeded from the statutory provision governing re-opening, s120 VCAT Act. The quoted statutory text requires the Tribunal to be satisfied the applicant had a reasonable excuse for not attending or being represented at the hearing before the Tribunal may hear and determine the application to re-open (Reasons [2], s120 quoted). The Tribunal applied that statutory test to the evidence. It concluded notice had been given to the applicant (notice sent 22 September 2008) and that the registry had attempted telephone contact on the hearing day. The claimed misunderstanding about a 3:00pm start was not accepted as a reasonable excuse in the circumstances; the applicant did not show a reasonable excuse or produce a contemporaneous request to withdraw the application (Reasons first order [2], [3], [5]-[6]). That failure led directly to refusal to re-open the substantive decision (Reasons first order [7]).

On the costs order, the Tribunal adopted an interpretive and procedural fairness approach. It observed that a narrow reading of s120 as applying only to orders literally made 'at the hearing' would render orders made on the papers immune from being re-opened. The Tribunal considered that such a result could imperil natural justice. Consequently, it adopted a wide meaning of 'at the hearing' to permit re-opening of subsequent orders made on the papers (Reasons second order [1]-[2]). The Tribunal then examined the file and found no record that the applicant had been provided with a copy of the responsible authority's costs claim (letter dated 14 April 2009) or otherwise given an opportunity to address costs before the costs order was made on the papers. In those circumstances the Tribunal considered procedural fairness required the applicant be given an opportunity to respond, and allowed the application to re-open the costs order while reserving further decision on costs until written submissions were received (Reasons second order [3]-[4]; Orders 2-4).

The Tribunal also noted contextual statutory provisions. It observed that where there is non-attendance the Tribunal is obliged to confirm the original decision under s51(5) of the VCAT Act; Member Mainwaring instead used the strike out power in s76 to achieve generally the same outcome (Reasons first order [4]). That remark is deployed as explanatory context rather than the primary statutory ground for the decision to refuse re-opening.

Before and after state of the law

Before this decision, s120 had an established role permitting re-opening of Tribunal orders where the applicant did not appear, subject to the statutory requirement of a reasonable excuse. The Tribunal explicitly referenced Tomasevic v State of Victoria [2005] VCAT 1525 as a precedent to which it had regard in assessing what amounts to a reasonable excuse (Reasons first order [1]). The decision in BCSP 5622 v Whitehorse City Council reinforces two points:

• The statutory 'reasonable excuse' threshold under s120 will be strictly applied where the Tribunal's file demonstrates notice and where the registry has taken reasonable steps to contact the absent party. If the applicant cannot establish a reasonable excuse, re-opening will be refused, and futility (e.g. permit already issued) will weigh against re-opening (Reasons first order [3], [7]).

• Section 120 should be interpreted to permit re-opening of orders made on the papers, to avoid insulating such orders from review and creating potential natural justice problems (Reasons second order [1]-[2]). The decision emphasises that procedural fairness in costs orders requires that, where a costs claim is filed on the papers and not copied to an absent party, the absent party should be given the chance to respond before costs are finalised (Reasons second order [3]-[4]).

This decision therefore clarifies tribunal practice in two ways: (1) confirms the need to show a reasonable excuse when seeking to re-open a substantive order after non-attendance, and (2) confirms that orders made on the papers are not beyond review under s120 where procedural fairness concerns arise.

Key passages with plain-English translation

1. Quoted statutory starting point (Reasons [2]): The Tribunal sets out s120 and identifies it as the governing test. Plain English: If you did not appear at your Tribunal hearing, you can apply to re-open the Tribunal's order, but only if you can show a reasonable excuse for not being there.

2. Finding of no reasonable excuse (Reasons first order [7]): "I consider that the applicant was not able to demonstrate that it had a reasonable excuse for its non-attendance." Plain English: The applicant could not give a satisfactory reason for missing the hearing, so the Tribunal would not re-open the decision.

3. Permit issued and futility (Reasons first order [7]): Because the permit was already issued, re-opening the substantive order was futile. Plain English: Even if the Tribunal accepted a good excuse, the practical effect, the permit already being issued, makes re-opening pointless.

4. Wide interpretation of 'at the hearing' (Reasons second order [1]-[2]): The Tribunal says s120 should be read to include orders made on the papers. Plain English: If an order was made after the hearing on the papers, a person who was absent can still apply to re-open it under s120; otherwise such orders could be unfairly protected from being changed.

5. Procedural fairness about costs on the papers (Reasons second order [3]-[4]): The responsible authority filed a costs claim on 14 April 2009 but there was no record it was provided to the absent applicant; the Tribunal allowed the matter to be re-opened so the applicant could respond. Plain English: If the other side files a costs claim and the absent party never saw it, the absent party should get a chance to reply before the Tribunal finalises costs.

What fact patterns trigger this precedent

This decision will be engaged where:

• An applicant or party did not attend a scheduled Tribunal hearing and later seeks to re-open the Tribunal's substantive order under s120, especially where the Tribunal's file shows notice was sent and the registry took steps to contact the absent party (Reasons first order [2]-[3], [5]-[7]).

• A costs order (or other consequential order) is made on the papers after a hearing at which a party was absent, and the absent party alleges they were not given a fair opportunity to respond to submissions filed after the hearing (Reasons second order [1]-[4]).

• The benefits of re-opening the substantive decision would be nugatory because a permit has been issued or the underlying administrative action has been completed (Reasons first order [7]).

The important triggers are (i) evidence of notice and attempts to contact, (ii) no credible contemporaneous request to withdraw, and (iii) whether a later order was made on the papers without affording the absent party an opportunity to reply.

How later courts have treated it

The decision itself records reliance on Tomasevic v State of Victoria [2005] VCAT 1525 for guidance on reasonable excuse (Reasons first order [1]). Within the current judgment, the Tribunal applied Tomasevic as persuasive authority on the standard of reasonable excuse. The present decision adds interpretive authority that s120 covers orders made on the papers, and draws an explicit connection between natural justice concerns and the breadth of s120's application (Reasons second order [1]-[2]). Any later decisions addressing re-opening under s120 would be likely to engage this reasoning on (a) the necessity of establishing a reasonable excuse with supporting evidence and (b) the need to afford procedural fairness in costs orders made on the papers. The judgment itself, however, does not provide further appellate treatment or overturn any precedent; it is a Tribunal decision applying established principles to its facts.

Still-open questions

Several issues remain open or only partially resolved on the face of this decision:

• The precise evidentiary threshold for a 'reasonable excuse' remains fact-sensitive. While the Tribunal found the applicant's asserted misunderstanding of the start time insufficient, the judgment does not set out a detailed taxonomy of what will or will not suffice in other circumstances; it follows Tomasevic but does not attempt to exhaustively define the standard (Reasons first order [1], [5]-[7]).

• The judgment adopts a broad interpretive approach to the phrase 'at the hearing' in s120 so as to include orders made on the papers; the limits of that breadth are not fully delineated. For example, the decision does not specify whether all post-hearing interlocutory orders will be re-openable or whether there are categories of 'on the papers' decisions that remain outside s120 (Reasons second order [1]-[2]).

• The judgment identifies procedural fairness concerns where a costs claim is filed on the papers without being copied to an absent party, but it does not outline a fixed procedural rule (for example, mandatory registry practice) for how costs claims must be handled. The remedy granted was case-specific: leave to submit written materials and a future determination (Reasons second order [3]-[4]).

• The interaction between s51(5) (the obligation to confirm the original decision where the applicant does not attend) and the strike out power in s76 remains a practical matter of tribunal practice. The Tribunal noted the functional equivalence in the present facts but did not fix an exclusive procedural pathway (Reasons first order [4]).

These open questions mean that while the decision provides clear guidance on the need for a reasonable excuse and on procedural fairness in costs made on the papers, practitioners should treat the decision as fact-driven and anticipate further case law refining the boundaries of s120's application and the exact proof required for a 'reasonable excuse'.

Note: This deep dive extracts and explains the Tribunal's reasoning and orders as recorded in BCSP 5622 v Whitehorse City Council [2009] VCAT 1134. It is grounded in the Tribunal's published Reasons and Orders, specifically the numbered paragraphs cited above. This material is legal information only, not legal advice. I can make mistakes. Before acting on, relying on, or filing anything based on this, get a qualified Australian lawyer to check it.