1. The Applicant relies on section 120 of the Victorian Civil and Administrative Tribunal Act 1998 as an alternative to its contention that the claim should be reinstated. Section 120 relevantly provides:

"(1) A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made."

1. Section 120 cannot apply if the Applicant attended the relevant hearing. The Applicant's evidence (in his affidavit of 19 April 2007) was that he arrived ten minutes late at the hearing on 27 July 2005 and the presiding member was writing orders, that the member told him the Respondent contended he had not complied with the Tribunal's orders; that the member asked why he had not complied; and that the Applicant had given an explanation. The Applicant said that the member then ordered that the Tribunal was satisfied the applicant had failed to comply with the orders of 18 July 2005 and struck out the claim. The Respondent's evidence agreed with this account. In those circumstances, in my view, the Applicant is unable to argue successfully that he was not present at the hearing on 27 July 2005. Accordingly, section 120 cannot apply, even taking into account the principle that the section is to be construed liberally, as the Applicant submitted.

Whether the Tribunal has power to reinstate the claim

1. The applicant contended that the claim, having been struck out, could be reinstated, relying on two previous decisions of the Tribunal as examples. In Wurzel v Francis Ryan [2003] VCAT 469, His Honour Judge Bowman chose to dismiss rather than to strike out that proceeding, expressing the view that striking out was "simply a matter of removal from a list with an inherent right to reinstatement or restoration". In Bradd v State Revenue Office [2006] VCAT 867 Deputy President MacNamara said in reinstating the application, that when a proceeding was struck out it was "conveniently removed from the list of active matters but not finally disposed of".
2. The Respondent's position was that reliance on these decisions of the Tribunal did not assist the Applicant because the first was distinguishable and the second was wrong in law, in that it failed to recognise that the Tribunal lacks the "inherent jurisdiction" upon which the courts rely in reinstating an action which has been struck out. The Respondent referred to Tanska v TAC [2000] VSC 56 at paragraph 16.
3. That the Tribunal has jurisdiction to reinstate a proceeding which has been struck out is in my view implicit in sections 75 and 78 of the VCAT Act. Each of those sections empowers the tribunal to strike out or to dismiss a proceeding. In order to give those provisions meaning, different effects must flow from the striking out of a proceeding than from its dismissal. However, the matter is put beyond doubt by Herald & Weekly Tines Pty Ltd v Victoria [2006] VSCA 146, in the Court of Appeal (allowing that appeal on other grounds) said at paragraph 19:

"In our view, the Tribunal does have the implied power, in appropriate circumstances, to reinstate a proceeding that it has struck out. Generally, as was pointed out by Kaye, J. In R v McGowan; Ex parte Macko & Sanderson [1984] VicRp 78; [1984] V.R. 1000 at 1002, an order striking out an action does not terminate it. The latter occurs where judgment is entered in the proceeding or where it is discontinued. An order striking out an action, said his Honour, only has the effect of removing it from the list. It is plain enough, we think, that it would be a serious impediment to the Tribunal's administration of the Act if it could not reinstate a proceeding that was struck out in order to make an otherwise appropriate order in relation to it".

1. It seems the correct position is that the Tribunal has implicit (but not inherent) jurisdiction to reinstate a proceeding which has been struck out. The Tribunal's power to reinstate is discretionary - see Bradd v SRO (Supra) at paragraph 16.

1. The Applicant contended that in deciding whether to exercise its discretion to reinstate the application, the Tribunal should consider the merits of the case (Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596) including what the Applicant said was the Respondent's concession that the Applicant has an arguable case, evidenced by a previous offer to the Applicant in respect of the claim and by the Respondent's apparent consent given at the compulsory conference that there be a hearing as to damages only. The Applicant said I should also consider the circumstances in which the strike-out application was made, its submission that whilst there was delay in bringing the reinstatement application the Respondent had alleged no prejudice and the fact that the Applicant had paid the costs ordered at the time the application was struck out.
2. For the Respondent it was submitted that if the Tribunal had power to reinstate, the principles governing the Tribunal's discretion were the length of any delay in making the application, the reasons given for the delay, whether the proposed application has any real chance of success and the possible prejudice to the Respondent.
3. Neither party referred me to authorities specifically concerning the exercise of a discretion to reinstate and the cases relied upon to establish these principles concerned generally the setting aside of a judgement obtained when one party had failed to appear However, I agree these are relevant principles. The two situations are analogous in that the Tribunal is required to weigh on the one hand the seriousness of denying the Applicant an opportunity to have his claim heard on its merits and on the other fairness to the Respondent who may have acted during the period of delay on the expectation that the strike-out order would stand and who may have lost the ability to adequately defend the matter.
4. I agree with the Applicant's submission that the test is as described by His Honour Justice Gillard in Denzel Griffiths v Malika Holdings Limited and applied by him in Linkenholt Pty Ltd v Quirk [2000] VSC 166 at 32:

"In my opinion delay per se is of little moment in an application to extend time. The inadequacy or adequacy of the explanation likewise is of little moment. What is of importance is the length of the delay and whether it has any prejudicial effect on the other party in relation its affairs or ability to contest the case and present its own".

1. That case concerned a question of whether to extend time for an appeal, but the situation is analogous, and the same test, in my view, is relevant here. It is therefore most relevant to consider the length of delay and whether it was prejudicial to the Respondent.

1. The Applicant's claim was struck out in July 2005. This application for reinstatement was filed at the Tribunal in January 2007, a delay of 18 months. Part of this delay may be accounted for by the Applicant's evidence (in the affidavit of Jillian Johnston dated 25 January 2007 and the affidavit of the Applicant dated 19 April 2007) that while in August 2006 the Applicant instructed solicitors to apply for reinstatement, there was some delay because the Tribunal was unable to provide the file for inspection. The parties were advised at a Directions Hearing that the Tribunal's file up to July 2005 was archived and appears to have been lost. However, there was no evidence that the Applicant advised the Respondent in August 2006 of his intention to apply for reinstatement. Ms Johnston's evidence was that a solicitor telephoned the Respondent's solicitors on 16 November 2006, so it is reasonable to conclude that the Respondent was then informed of the Applicant's intentions.
2. No explanation has been given by the Applicant for the delay between July 2005 when the application was struck out and November 2006, except for the Applicant's suggestion in his affidavit of 19 April 2007 that the costs ordered in July 2005 were not assessed until March 2006. Even then there is a gap of five months until he instructed his solicitors and a further three months until the Respondent was informed of the proposed application for reinstatement. The Applicant did not offer sufficient explanation of the delay to persuade me to exercise my discretion in his favour, if explanation were the only or the main criterion to be taken into account in the exercise of my discretion.
3. The Respondent submitted that the Tribunal should not reinstate the application, as the length of unexplained delay was inordinate. The more important question in my view is how that delay has affected the Respondent. Whether the delay "has any prejudicial effect on the other party in relation to its affairs or ability to contest the case and present its own" (Linkenholt) is the main criterion. The Respondent contended that it had identified sufficient prejudice, that documents had been lost and memories faded.
4. On this issue of prejudice, the Respondent relied on Ms Russell's affidavit of 27 April 2007 to establish the following alleged facts:
   • Kyle Barnes, with whom the Applicant claimed to have had a conversation in 2004 about the value of the Applicant's boat, is unavailable to give evidence, having the left the Respondent's employ in 2005;
   • the Applicant has sold the boat the subject of the dispute and the Respondent does not know where it is and so is unable to examine it;
   • the Respondent has been unable to contact the expert who provided a report for the original (planned) hearing, Brian Andrews, so he may be unavailable.
5. In response, the Applicant filed two further affidavits, which I have accepted for the reasons given above. The Applicant's evidence was:
   • The Applicant says he has not sold the boat and it is still available for the Respondent to inspect at any time
   • Brian Andrews is still in the business of doing boat valuations as a person at his office gave information to that effect when Ms Johnston telephoned on 1 May 2007 (according to her affidavit).
6. These being the only matters raised by the Respondent as prejudicing its ability to defend itself, I was not persuaded that there is any prejudice except for the possibility that Kyle Barnes is unavailable. The Applicant's affidavit of 18 April 2007 outlines his evidence about Kyle Barnes.
7. On that basis and given that the Respondent admits the boat is a 28 foot boat (as was agreed before me at the hearing) I was not persuaded that the absence of Kyle Barnes would be any more prejudicial now than it was in July 2005 when the application was struck out. If Kyle Barnes's unavailability is prejudicial, that unavailability and that prejudice does not appear to be occasioned by the Applicant's delay in seeking to reinstate his claim.

1. The parties agreed that the merits of the case are also a relevant consideration although their position on whether the application has any merit were different.
2. As the Respondent admits the boat is different in some degree to the one described to the Applicant, the Applicant's claim appears to turn on whether he can show that he has suffered any loss or damage connected with that difference.
3. In July 2005, the Applicant produced some material in support of his claim and that was considered insufficient to satisfy the Tribunal's orders for discovery of documents particularising the claimed loss. The Respondent contends the application should not be reinstated because the Applicant has produced nothing further. The Applicant's submission was that further particulars would be promptly supplied. I cannot at present form any view that the Applicant's case is hopeless. It will depend upon the evidence produced. In those circumstances it would not be fair to deny the Applicant another opportunity to produce that evidence. However, it will be appropriate that the Applicant's ability to produce evidence of loss and damage is dealt with swiftly if the application is reinstated, so that failure to particularise the loss and damage will lead to the application being again struck out or dismissed as early as necessary to prevent unnecessary incursion of costs.
4. The Respondent drew the Tribunal's attention to the exhibit "NL-R1" a copy of a report from Brian Andrews. The report was undated but attached to Nicole Russell's affidavit of 17 April 2007, Ms Russell deposed it had been filed before the hearing of July 2005. The report expresses the view that "there is not much difference in value between the value of the 300DA and the 280DA" which would indicate that the Applicant's success is less likely. However, it does allow for some difference in value and until the Applicant has had an opportunity to produce his own evidence as to value, one untested opinion is not sufficient basis to establish that his case is without merit.
5. There has been unexplained delay between the striking out of the application in July 2005 and the Applicant's application for reinstatement in January 2007. However, I was not persuaded that the delay is the cause of any prejudice to the Respondent either in respect of its affairs or its ability to defend itself. Nor was I persuaded that the Applicant's chances of success are so slim that he ought to be denied the opportunity to pursue his claim. Therefore the application should be reinstated. However, I note that the Applicant's failure to produce sufficient reliable particulars of loss and damage led to the striking out of the application and consider that the Applicant should be required to produce the relevant material swiftly after the reinstatement of the application.

1. The application is reinstated.
2. The principal registrar is directed to fix the matter for a Directions Hearing before me as soon as possible.