(1) The Tribunal may correct an order made by it if the order contains -

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

(b) on the application of a party in accordance with the rules.

1. Section 117 of the VCAT Act provides that the Tribunal's reasons for an order form part of the order. Accordingly, section 119 may apply to a mistake in an order and also to a mistake in the reasons for decision.[2]
2. Section 119 reflects what is usually known as the 'slip rule'. CAV made submissions about the proper interpretation and application of section 119 which I accept. In summary:
   • The purpose of the slip rule is to avoid injustice;
   • The operation of the slip rule is very wide;
   • The scope of the slip rule is not unlimited; and
   • The power to correct mistakes is not confined to accidental mistakes.
3. CAV agreed that section 119 may not be relied upon to challenge the Tribunal's decision or be used as a means to re-argue an unsuccessful case.
4. Mason CJ said this about the slip rule in Autodesk Inc v Dyason (No 2):[3]

These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. . . . However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.

1. The Tribunal has taken the approach that section 119 allows for amendment of an order and the making of an order it failed to make as a result of the accidental omission or mistake.[4]
2. CAV referred me to the Tribunal's decision in Vuka Homes v Couty.[5] In that case, the applicant had included an application for interest on any damages award but that application had been overlooked by the Presiding Member. The Tribunal said that the claim for interest would have been dealt with in the decision but for the oversight and the Member then considered what he would have done had he not overlooked the matter at the time of preparing the order and the accompanying reasons for decision. The Member concluded that he would have made an order and that order would have been for interest under the Domestic Buildings Contract Act 1995 (Vic) rather than under the terms of the domestic building contract in issue.
3. In Story and Keers Pty Ltd v Johnstone,[6] McHugh JA said at page 452:

The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist. In general [the test] is whether the correction would have been made at once if the matter had been drawn to the Court's attention.

1. In Finch v The Heat Group Pty Ltd & Ors,[7] then Deputy President Coghlan was asked to make an order in a matter heard earlier by a Vice President. The respondent contended that, as a result of an accidental slip or omission by the Tribunal, the parties did not have the opportunity to be heard on the question of certification for counsel's fees. The requested certification concerned fees for 27 days of hearings (including mediations), eight directions hearings, 20 hours for conferences with witnesses, 25 days for document reading/drafting, conferring etc and 30 days for reading and hearing preparation. While DP Coghlan had the power to hear the application under section 119,[8] she declined to do so as she said that it was impossible to apply the slip rule to a case where, making the order sought required the Tribunal to exercise an independent discretion. DP Coghlan noted that the orders called for a decision not only as to whether there should be certification for counsel's fees but also as to the rate at which those fees should be set.[9]
2. I have had regard to these matters in considering CAV's application.

1. At paragraphs 61 and 62 of the original reasons I said this:
   1. CAV relies on section 50(1)(b) of the Act which relevantly provides that an estate agent is not entitled to retain any commission unless the requirements of section 49A(1) of the Act in respect of the required written authority have been met. CAV contended at the hearing that the fact the commission was paid to the company ought not to prevent Mr Hoban from being required to refund it personally. Mr Ventrice, appearing for CAV, noted that it was Mr Hoban himself, rather than a staff member, who had failed to comply with the statutory requirements. He referred me to section 195 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA). That provision says that an officer of a body corporate who knowingly authorised or permitted a contravention of that Act by a body corporate is deemed to have also committed the contravention.
   2. There is no provision in the Act equivalent to section 195 of the ACLFTA and this proceeding is not brought under the latter act. In those circumstances I am not persuaded I have power to make an order under section 28A(1)(b) to give effect to the prohibition in section 50(1) where the commission in issue was not paid to Mr Hoban personally.
2. I was incorrect to find that the Tribunal lacked the power to make an order under section 195 of the ACLFTA. Section 93A(1) of the Estate Agents Act says that section 195 of the ACLFTA extends and applies to the Estate Agents Act. Accordingly, the Estate Agents Act does grant the Tribunal the power to find that an officer of a body corporate, such as Mr Hoban, who knowingly authorised or permitted a contravention of the Estate Agents Act by a body corporate also committed the contravention. As I had found that Mr Hoban had knowingly authorised the company to obtain commission without holding a signed written engagement or appointment from the vendors in breach of section 49A of the Estate Agents Act,[10] it was open to me to find that he had personally contravened section 49A.
3. CAV contend that the finding I made was not a finding of material fact which would alter the fundamental logic of the decision. I agree that the finding was one of law rather than fact.
4. CAV had referred me to section 93A of the Estate Agents Act in the course of closing oral submissions, however, I overlooked the section when preparing my reasons and orders. I am satisfied that by overlooking that section, I made a material mistake in the description of the law. In those circumstances, and having regard to the High Court's decision in Autodesk Inc v Dyason (No 2), I am satisfied it is appropriate to amend paragraph 62 to correct my error. I will come to the wording of the amendment shortly.

1. Having agreed that it is appropriate to amend the reasons in the way described, CAV asks that I consider ordering repayment of the commission. It says I may now consider what I would have ordered had I correctly had regard to section 93A of the Estate Agents Act and section 195 of the ACLFTA in the context of 50(1) of the Estate Agents Act which prohibits an estate agent from retaining commission where section 49A(1) has not been complied with. In other words, CAV asks that I now consider whether I would have made an order that the commission payments in issue be repaid by Mr Hoban personally.
2. I am not persuaded that I have the power under section 119 to now determine whether Mr Hoban personally should repay the commission payments. I consider that would call for the exercise of a discretion such as that discussed in Story and Keers Pty Ltd and Finch. It would have required me to:
   • Decide that the reference in section 28A(1)(b) to 'a requirement specified by the Tribunal' includes an order for repayment of commission in order to give effect to section 50(1) of the Estate Agents Act; and
   • Be satisfied that, taking into account section 93A(1) of the Estate Agents Act, it was appropriate to make an order that the commission payments made to the company, ought to be repaid by Mr Hoban.
3. The order does not follow as a matter of course. As it calls for the exercise of a discretion I consider that it is beyond the scope of section 119. Even if I was incorrect about that, I cannot now say, with what I consider to be the necessary certainty that, had the matter been brought to my attention at the time I was finalising my decision, I would have made the order sought 'at once'.

1. I will order that paragraph 62 of the Reasons for Decision published on 5 August 2016 be deleted and replaced with the following:

Section 93A of the Act has the effect that section 195 of the ACLFTA applies to officers of bodies corporate, such as Mr Hoban. The consequence is that the Tribunal has the power to find that Mr Hoban is personally liable for conduct of the company. For the reasons given in Director of Consumer Affairs Victoria v Hoban (No 2) [2016] VCAT 1574 no order for the refund of commission will be made.

1. The application for further correction under section 119 of the VCAT Act will be dismissed.

[1] Director of Consumer Affairs Victoria v Hoban [2016] VCAT 1322.

[2] See Thomas v Whittlesea CC [2009] VCAT 825 at paragraph 18; National Trust of Australia (Vic) Mount Alexander Branch v Mount Alexander SC [2009] VCAT 1876; and Nodin v Cardinia SC [2008] VCAT 202.

[3] [1993] HCA 6 at paragraph 4.

[4] See Cosgriff v Housing Guarantee Fund Ltd [2006] VCAT 463 and Finch v The Heat Group Pty Ltd & Ors [2012] VCAT 223 relying on R v Cripps [1984] QB 686 at 695.

[5] [2005] VCAT 1301.

[6] (1987) 9 NSWLR 446.

[7] [2012] VCAT 223.

[8] The power to make an order under section 119 is conferred on the Tribunal, not only on the particular member who made the order sought to be amended.

[9] At paragraph 16, referring to Civil Procedure Victoria Service 227 [I 36.07.65] and Brew v Whitlock (No 3) [1968] VicRp 63; [1968] VR 504.

[10] At paragraph 37 of the reasons and paragraphs 8 and 9 of Attachment A to the reasons.