On 1 April 2008 I heard, and granted, an application by the applicant Ms Guss under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") for review of an order made on 22 November 2007. By that order, this proceeding was dismissed as a consequence of the applicant's failure to attend a compulsory conference which had been adjourned to resume on that day, 22 November 2007. I gave very brief oral reasons for my decision and said that I would given written reasons later. These are those reasons.

This proceeding was commenced in 2004. In it the applicant claimed compensation from the respondent for loss allegedly caused by misleading or deceptive conduct in contravention of section 9 of the Fair Trading Act 1999. The conduct complained of related to the marketing of an apartment in the Docklands area. The applicant purchased the apartment. The interested party, Marie Howard, joined upon the respondent's application, is the sales representative involved in the conduct complained of.

The history of the applicant's prosecution of the case is deplorable. On 21 April 2005 an order was made striking out the proceeding because the applicant had failed to comply with directions to file and serve Points of Claim. The applicant made a successful application to reinstate the proceeding. Thereafter there was non-compliance, and eventually late compliance, by the applicant with directions for the filing and serving of witness statements and for discovery. A hearing of the proceeding was fixed for 3 September 2007 but was adjourned because of the late filing of witness statements. The order granting the adjournment included a direction for a compulsory conference between the parties.

The compulsory conference commenced before Senior Member Levine on 3 September 2007. All the parties attended and were represented by Counsel. The Senior Member adjourned the compulsory conference to 22 November 2007 at 9.30am. The authenticated order made on 3 September 2007 specified that date and time.

On 22 November 2007 the other parties attended, but the applicant did not, at the time specified for attendance at the compulsory conference. As he was empowered to do by section 87 of the Act if the other parties present agreed (which they did), the Senior Member determined the proceeding adversely to the applicant by ordering that her application was dismissed with costs. The principal registrar posted a copy of the authenticated order to each party on 29 November 2007.

On 20 December 2007 the applicant filed a statutory declaration made by her on that day, in which she requested a review of the order made on 22 November 2007 and thereby made an application, under section 120 of the Act, for a review of that order.

120. Re-opening of an order on substantive grounds

(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.

(2) An application under sub-section (1) is to be made in accordance with, and within the time limits specified by, the rules.

(3) The rules may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal.

(a) hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and

(b) if it thinks fit, order that the order be revoked or varied.

(5) Nothing in Division 3 of Part 3 applies to a review under this section.

1. To succeed in an application for review under section 120 an applicant must meet a number of requirements. First, the order of which a review is sought must have been made at a "hearing." Secondly, it must have been the case that the applicant for review did not appear and was not represented at that hearing. Thirdly, the application must have been made within the time limits specified by the rules, that is to say, the Victorian Civil and Administrative Tribunal Rules 1998. Fourthly, the Tribunal must be satisfied that the applicant for review had a reasonable excuse for not attending or being represented at the hearing. Finally, the Tribunal has to think it "fit" that the order be revoked or varied; the Tribunal has a discretion to refuse to grant the application even if the other requirements have been met: Tomasevic v State of Victoria + Others [2005] VCAT 1525 per the President, Justice Morris.

2. Rule 4.18(1) of the Rules requires that an application for review under section 120 of the Act must be made within 14 days after the applicant becomes aware of the order. Late in the afternoon of 22 November 2007 the applicant became aware of the order that had been made earlier that day. So her application for review filed on 20 December 2007 had been filed outside that 14 day period.

3. Section 126(2) of the Act provides that, if the rules permit, the Tribunal may extend any time limit fixed by the rules for the doing of any act in a proceeding. By Rule 4.19 the Tribunal is permitted to extend the time limit fixed by Rule 4.18(1). On 1 April 2008 the applicant applied orally for an extension of time.

4. In summary, the submissions of Mr Shaw, Counsel for the respondent, which were adopted by Mr Aghion, Counsel for the interested party, were as follows:

(a) A compulsory conference is not a "hearing" and so the order of Senior Member Levine made on 22 November 2007 at the time of a compulsory conference was not made at a "hearing." Accordingly the applicant cannot fulfil the first requirement imposed by section 120 and there is no power under that section to grant an application for review of the order.

(b) The time for making the application should not be extended because the applicant has not satisfactorily explained why the application was not made in time.

(c) The applicant has not given a reasonable excuse for not having attended or having been represented at the compulsory conference on 22 November 2007.

(d) The Tribunal should exercise its discretion against granting the application for review and revoking the order, in view of the history of the proceeding and the applicant's record of non-compliance and delay.

1. I have rejected all of those submissions. The first of them involves an important question of law. That is why I announced that I would give written reasons for my decision.

1. Section 83(1) of the Act provides that the Tribunal or the principal registrar may require the parties to a proceeding to attend a compulsory conference before a Member "before the proceeding is heard by the Tribunal."

(a) to identify and clarify the nature of the issues in dispute in the proceeding;

(c) to identify the questions of fact and law to be decided by the Tribunal;

(d) to allow directions to be given concerning the conduct of the proceeding.

Section 83(4) provides that unless the person presiding otherwise directs, a compulsory conference must be held in private. In contrast, section 101(1) of the Act provides that, unless another provision of the Act provides otherwise, "all hearings of the Tribunal must be held in public".

A compulsory conference is a form of alternative dispute resolution which the Act empowers the Tribunal to enliven. The major function which a presiding Member performs at a compulsory conference is the function identified in section 83(2)(b): "to promote a settlement of the proceeding". While performing this function the presiding Member acts a facilitator only, and does not perform any judicial function. In that respect a compulsory conference is akin to a mediation, another form of alternative dispute resolution which under section 88 of the Act the Tribunal is empowered to enliven.

If the compulsory conference results in a settlement, the presiding Member may make any orders necessary to give effect to the settlement: section 93(1). That can be done at the compulsory conference itself. Likewise, if a mediation is conducted by a Tribunal Member and the proceeding settles at a mediation, the mediator may make any orders necessary to give effect to the settlement: section 93(2). When making such an order, whether in the context of a compulsory conference or in the context of a mediation, the member performs a judicial function.

The function identified in section 83(2)(d), to allow directions to be given, is usefully performed only if the compulsory conference does not result in a settlement. The directions will, in practice, be made in the course of an order made by the presiding Member. When making the order the Member performs a judicial function. The provision in section 83(2) for the giving of directions at a compulsory conference is a point of difference between a compulsory conference and a mediation, because section 88 does not provide for a mediator to give directions concerning the conduct of a proceeding.

The identifying functions referred to in section 83(2)(a) and (c) may be performed by the president Member in the course of the Member's facilitation of settlement but, if the identification is spelt out in an order made when the compulsory conference has not resulted in a settlement, the functions have become judicial functions.

Section 87 authorises what Senior Member Levine did on 22 November 2007 when the applicant did not attend and was not represented at the adjourned compulsory conference. There is no comparable section in relation to a mediation. So that is another point of difference between a compulsory conference and a mediation. Section 87 provides: 1. What happens if a party fails to attend a compulsory conference

If a party does not attend a properly convened compulsory conference-

(a) the conference may proceed at the appointed time in the party's absence; and

(b) if a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may -

• (i) determine the proceeding adversely to the absent party and make any appropriate orders; or
• (ii) direct that the absent party be struck out of the proceeding.

The making of the order in exercise of the power conferred by section 87, determining the proceeding adversely to the applicant and dismissing the application, was the exercise of a judicial function.

Mr Shaw submitted, correctly, that although the Act does not define "hearing" it makes a distinction between a compulsory conference and a "hearing". The distinction is made in the heading to Part 4 Division 5 ("Compulsory conference, mediation and settlement") and in the heading to Part 4 Division 7 ("Hearings"). The distinction is made in section 83(1), referred to above, and in section 85. Again the distinction is made in section 83(3), which requires the giving of a notice of a compulsory conference, and in section 99, which requires the giving of a notice of "the hearing". Those manifestations of the distinction are reasons given by the learned author of Pizer's Annotated VCAT Act, 3rd edition at para [3460] and at para [4300], for an opinion that an order made under section 87 is not an order made at a "hearing" and so section 120 is not applicable to such an order.

No doubt while a compulsory conference is in progress, with the presiding Member performing a facilitator's function, it is not a "hearing." Not only is there the distinction in the Act the manifestations of which I have mentioned in the previous paragraph, but there is the additional feature that a compulsory conference is required to be held in private, unlike a hearing (unless the Act provides otherwise, and section 83(4) may well be an instance of the Act providing otherwise). But once the facilitator's function has been completed - or, as in the present case, once that function was not able to the continued because the applicant had not attended or been represented - and the presiding Member proceeds to make an order, fulfilling a judicial function, it does not follow, from the distinction and the additional feature referred to above, that the performance of that judicial function does not occur at a "hearing."

There are three reasons why, in my opinion, a "hearing" for the purposes of section 120 includes a compulsory conference when an order is made under section 87 at the compulsory conference determining a proceeding adversely to a party.

The first reason derives from a consideration of what the Tribunal does when determining a proceeding adversely to an absent respondent and making "appropriate orders" in favour of an applicant, in exercise of the power conferred by section 87. To decide what orders are "appropriate" the presiding Member usually will require to hear evidence from the applicant proving so much of the claim as the applicant is able to prove. The process of receiving that evidence cannot, in my opinion, be characterised as anything other than a "hearing." When, as in the present case, the Tribunal determines a proceeding adversely to an absent applicant, the "appropriate" order (a dismissal of the proceeding) is obvious, and there is no need to hear evidence. Conceivably there are cases in which the Tribunal could decide on the "appropriate" order to make against an absent respondent without hearing evidence. But if it is correct to characterise one process adopted in the pursuance of the power conferred by section 87 as a "hearing" it seems to me that it must be correct to characterise other processes adopted in the pursuance of that power as a "hearing" too.

The second reason is that section 120 is a remedial provision. It should be construed liberally: Alesci v Salisbury [2002] VSC 475. It affords an indulgence to a person against whom an order has been in that person's absence when that person has had a reasonable excuse for being absent. It would be inconsistent with a beneficent, liberal construction of the section to narrow its application so as to exclude a person whose non-attendance was at a compulsory conference. An example of the word "hearing" in section 120 being given a beneficent, liberal construction is Wahr v Australian Broadcasting Corporation [2000] VCAT 1080 in which Deputy President McKenzie decided that a Tribunal decision made on the papers lodged by a party was made at a "hearing" for the purposes of section 120 so that the other party had a right to apply under that section for a review of the decision.

A consequence of a narrow construction being given to the word "hearing", so that it does not apply to an order made at a compulsory conference, would be that a person against whom a proceeding had been determined adversely as a result of not having attended a compulsory conference through no fault of that person would have no recourse at all, other than the recourse of applying to the Supreme Court for leave to appeal in a case where a question of law arose from the order (even though in many cases there would be no question of law). Denying such a person any recourse at all would not sit well with the requirement in section 97 of the Act that the Tribunal must act fairly and according the merits of the case in all proceedings.

In saying that such a person would have no recourse if section 120 were not to be made available through a liberal construction of "hearing" I am assuming that the Tribunal has no power to set aside one of its own orders other than than the power conferred by section 120. Mr Watts, Counsel for the applicant, while submitting that section 120 was applicable, made an alternative submission that the Tribunal has an inherent jurisdiction to set aside an order obtained by default as in the present case. He cited Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 in which the High Court held that the Family Court, although created by statute, possessed an inherent jurisdiction to set aside a judgment obtained by default, because "[a] jurisdiction to set aside its orders is inherent in every court unless displaced by statute" (per Mason J. at p.16)".

This Tribunal is created by statute, as is the Family Court. The comparison may end there, however. In Herald and Weekly Times Pty Ltd v VCAT [2006] VSCA 7; (2006) 24 VAR 174 at 181 Maxwell P., with whose judgment the other members of the Court of Appeal agreed, stated (although the statement was not essential to the judgment) that this Tribunal has no inherent jurisdiction. That dictum alone may defeat the argument that by virtue of the Taylor principle this Tribunal has an inherent jurisdiction to set aside an order made in default of a party's attendance. At all events, the likelihood that this Tribunal is not a "court" in the context in which the Taylor principle was expressed would also defeat the argument. The prevailing view within the Tribunal is that it is not a "court of a State" for the purposes of Chapter III of the Australian Constitution and the Judiciary Act 1903 (Commonwealth) and so is unable to exercise federal jurisdiction: Maltall Pty Ltd v Bevendale Pty Ltd (1998) VAR 368 (a decision of Deputy President Macnamara). An important reason for this view is that Tribunal members are appointed for five year terms only and so do not have the tenure traditionally enjoyed by judges and magistrates. That is not to say other that the Tribunal cannot be a "court" in some other context; for example, it is a "court" for the purposes of provisions of the Corporations Act 2001 (Commonwealth) which prevent a person from beginning or pursuing a proceeding in a "court" against a company in external administration without leave: Moorabool Shire Council v Taitapanni [2002] VSC 418.

The last word has not yet been spoken on the issue of whether the Tribunal is a "court of a State" for the purposes mentioned above. In Commonwealth v Wood [2006] 27 ALR 631 a single Judge of the Federal Court held that the Tasmanian Anti-Discrimination Tribunal was a "court" capable of exercising federal jurisdiction. The reasoning in Wood gives support to a view that this Tribunal likewise is a "court" capable of exercising federal jurisdiction. The New South Wales Court of Appeal in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 1 NSWLR 77 disapproved of the reasoning in Wood and in _Attorney-General (NSW) v 2UE Sydney Pt_y Ltd [2006] NSWCA 349; (2006) 236 ALR 385 held that the New South Wales Administrative Decisions Tribunal was not a "court" capable of exercising federal jurisdiction. The reasoning in the two Court of Appeal decisions supports what I have called the prevailing view. Those two decisions are criticised, however, by the Hon. Duncan Kerr SC, MP, in an article in (2007) Australian Institute of Administrative Law Forum No. 55, at p.10. He argues that a decision of the High Court, Forge v Australian Securities and Investments Commission [2006] HCA 44; (2000) 229 ALR 223 may require those two Court of Appeal decisions to be reconsidered. 11. This case does not provide the occasion to attempt to decide that issue. For present purposes it is enough to say, as I do, that there is very considerable doubt whether this Tribunal is a "court" possessing an inherent jurisdiction to set aside a default judgment, and that the assumption that it is not is more justifiable than any assumption that it is.

12. If the Tribunal does have an inherent jurisdiction to set aside an order made as a consequence of a party not having attended or having been represented at a "hearing", there would seem to have been no need for section 120 to have been included in the Act, and one would be entitled to wonder why section 120 contains the limiting requirement that the party needs to show a "reasonable excuse" when there would be no such limitation upon the exercise of such an inherent jurisdiction. Those considerations seem to me to be another reason for concluding that there is no such inherent jurisdiction and that if the absent party has no recourse under section 120 then that party has no recourse at all except to appeal. In turn, that conclusion reinforces the desirability of giving a "hearing" in section 120 a wide meaning so that it includes a compulsory conference.

13. The third reason why a "hearing" for the purposes of section 120 should be construed to include a compulsory conference derives from the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). The Charter came into operation on 1 January 2008, so far as its provisions relating to statutory construction are concerned.

14. Section 32(1) of the Charter provides that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. One of the human rights enshrined in Part 2 of the Charter is a right to a fair hearing. Section 24(1) (within Part 2) provides that a party to a civil proceeding has the right to have the proceeding decided by a court or tribunal "after a fair and public hearing."
15. The following passage from the judgment of Jenkins L.J. in Grimshaw v Dunbar [1953] 1 Q.B. 408 at 416 (cited with approval by Gibbs J in Taylor) seems to me to encapsulate what is meant by a "fair hearing" of a proceeding as a whole:

Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs.

1. An interpretation of section 120 of the Act that permits a party who fails to attend or be represented at a compulsory conference, and finds the proceeding determined adversely to that party, to have a right under that section to apply for a review and re-hearing of the order making the adverse determination, is an interpretation which is comparable with the right to a fair hearing of the proceeding as a whole on its merits. "Common justice demands", in Jenkins L.J's phrase, that a party whose failure to attend or be represented is the result of "some mischance or accident", or of something for which there is a reasonable excuse, should be allowed to take advantage of the remedial provision, section 120, available to a person who has not attended or been represented at a "hearing" at which order was made. A narrow interpretation of section 120, excluding a compulsory conference from the scope of the word "hearing", so that the party in question has no recourse other than an appeal, is not an interpretation which is comparable with the right enshrined by the Charter to a fair hearing of the proceeding. An application of the Charter compels the more generous interpretation in my opinion.
2. Mr Shaw relied upon two decisions of the Tribunal which, he submitted, supported his argument that an order made at a compulsory conference is not an order made at a "hearing" because they decided that an order made by a mediator was not an order made at a "hearing." He very properly referred me to a third decision of the Tribunal which, on the contrary, decided that an order made at a compulsory conference was an order made at a "hearing".
3. The first decision was that of the President, Justice Morris: Raspa v City of Port Phillip and Kyrkilis [2004] VCAT 1863, decided on 16 September 2004. A proceeding in the Planning and Environment List was referred to mediation. The mediator was a Tribunal member. The second respondent, who was an objector to an application for a permit, did not attend the mediation. In fact the objector had never been sent a notice to attend the mediation, although the Member was apparently unaware of that fact. In purported exercise of a power under section 78 of the Act, the Member made an order striking out the second respondent as a party. Section 78 provides that if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as failing to attend a mediation (amongst other examples) the Tribunal may (amongst other things) order that the party causing the disadvantage be struck out of the proceeding. The Member then proceeded to make an order under section 93 of the Act giving effect to a settlement achieved by the other parties. Apparently those orders were made on the very day of the mediation even though no hearing of any application for an order under section 78 had been listed or notified to the parties.
4. The second respondent applied under section 120 for an review of the order. The President, hearing the application, made an order the effect of which was to set aside the Member's order. In doing so, however, his Honour emphasised that he was not exercising a power conferred by section 120 because he considered that that section was not available in the context of an order made following a mediation. Instead his Honour relied upon sections in the Act relating to declarations and injunctions. On the subject of section 120 his Honour stated:

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.

1. For two reasons I consider that Raspa is not authority for the proposition that an order made at a compulsory conference is not an order made at a "hearing".
2. First, Raspa is distinguishable from the present case. It dealt with an order made following a mediation, in purported exercise of a power conferred by section 78. I have referred earlier to points of difference between a compulsory conference and a mediation. For a mediation the Act does not contain any counterpart to section 87, which expressly authorises the presiding Member at a compulsory conference, then and there, to determine the proceeding adversely to an absent party "and make appropriate orders" or to direct that the absent party be struck out of the proceeding. There is no need for the presiding Member to call section 78 in aid. I pass over the question of whether a Member who exercises the judicial function of making an order under section 78, as distinct from performing a mediator's function, automatically sets in train a "hearing." My point is that what a presiding Member at a compulsory conference is empowered to do when a party does not attend is something that a mediator, acting as such, is not empowered to do.
3. Secondly, Raspa was decided before the Charter was enacted and came into operation. For reasons I have given above, the Charter probably requires a different view of section 120 than was expressed in Raspa and I venture to suggest that his Honour might have expressed that different view if the Charter had been in operation at the time he decided the case.
4. Nor is Raspa authority for the existence of an inherent jurisdiction in the Tribunal to set aside an order made by default. His Honour did not claim to exercise any inherent jurisdiction. Rather, his Honour relied on the Tribunal's declaratory and injunctive powers, to declare the Member's order invalid and to restrain the responsible authority, the first respondent, from acting upon the order. With respect, I observe that his Honour did not explain how one Member (for his Honour was hearing the matter in that capacity) has power to declare another Member's order invalid or to restrain a party from acting upon another Member's order. The only explicit power in the Act to set aside a Member's order is the power conferred by section 120 when the circumstances described in that section exist.
5. The second decision relied upon by Mr Shaw was that of Deputy President Gibson: Appleby v Drakulic v Moonee Valley City Council and Tan [2007] VCAT 1662, decided on 19 September 2007. Again, a proceeding in the Planning and Environment List was referred to mediation. Again, the mediator was a Tribunal member. Again a party failed to attend. This time it was the applicant for a permit, who was the second respondent in the proceeding commenced by objectors as applicants in the proceeding. Again, the mediator, a Senior Member, purported to exercise the power conferred by section 78. The Senior Member determined the proceeding adversely to the second respondent and in favour of the applicant objectors by setting aside the responsible authority's decision to grant a permit. Again, there was no explanation of how a Member acting as mediator was exercising a power conferred by section 78 immediately following a mediation and without a separate hearing having been listed and notified to the parties. Again, the absent party, the second respondent, applied under section 120 for a review of the order.
6. The Deputy President dismissed the application for review. She gave several reasons. First, the second respondent did not attend the hearing of the application for review. Secondly, she was not satisfied on the material filed by the second respondent that he had had a reasonable excuse for not attending the mediation. Thirdly, for the reasons given by Justice Morris in Raspa, section 120 was not available to the second respondent.
7. Either of the first two reasons was sufficient to dispose of the matter. The third reason was not essential to the Deputy President's decision. Even if it had been essential, the case is distinguishable from the present case for the same reason as Raspa is distinguishable. Again the decision pre-dated the Charter. For those reasons I consider that the case does not support Mr Shaw's argument.
8. The third decision, which is against Mr Shaw's argument, was that of Deputy President Aird: Matan Properties Pty Ltd v Waterson [2007] VCAT 2435, decided on 17 December 2007. At a compulsory conference in a proceeding in the Domestic Building List, the respondents failed to attend. The presiding Senior Member exercised the power conferred by section 87 and determined the proceeding in favour of the applicant. The respondents made an application under section 120 for a review of the order.

9. At the hearing of the application for review in Matan Properties, Counsel for the applicant (in whose favour the order had been made) submitted that section 120 did not apply to an order made at a compulsory conference because it was not an order made at a "hearing." Counsel referred to the passages in Pizer mentioned above but apparently did not refer the Deputy President to Raspa or to Appleby. The Deputy President rejected the submission. She pointed out that the presiding Member at the compulsory conference had heard evidence before making the order. She referred to section 97 of the Act (the requirement for the Tribunal to act fairly) and to section 98 (which affirms that the Tribunal is bound by the rules of natural justice) and concluded that in view of those sections Parliament could not have intended that a party who had a reasonable excuse for failing to attend a compulsory conference would not have the same rights to a review as a party who had a reasonable excuse for not attending a hearing.
10. For reasons I have given above the lack of a consideration of Raspa does not detract from the merit of the Deputy President's conclusions. With respect I consider them to be correct. The interpretative overlay now effected by the Charter, which was not in operation at the time of the decision in Matan Properties, reinforces its correctness, in my opinion. Like the present case, Matan Properties concerned a compulsory conference, not a mediation. Except that in Matan Properties the presiding Senior Member received evidence before making an order whereas in the present case the presiding Senior Member did not, that case is on all fours with the present case.
11. The order made on 22 November 2007 was made at a "hearing." Section 120 is applicable. I had the power to determine the application for review made under that section.

1. The material filed in support of the application for review was a statutory declaration by the applicant dated 20 December 2007, to which there were two annexures, and an affidavit by the applicant dated 29 February 2008. The material filed in opposition to the application for review was an affidavit by Andrew Peter O'Bryan (the solicitor for the respondent) dated 6 February 2008 an affidavit by David Kevin Creasey (the solicitor for the interested party) dated 8 February 2008. The affidavits by the two solicitors set out the history of the proceeding.
2. Since the order dated 22 November 2007 was made the applicant has changed solicitors. Precisely when the change was made does not appear from the material filed on her behalf, but I inferred that it was some time between 22 November 2007 and 20 December 2007 and probably shortly before 20 December 2007. I drew that inference from the following material:

• (a) In the first annexure to her statutory declaration the applicant deposed that late in the afternoon of 22 November 2007 she became aware of the order made at the compulsory conference earlier that day, and that she became aware of it because her Counsel (who had been briefed to appear on the next day, 23 November 2007, which she had believed the date fixed for the compulsory conference to have been) telephoned the registry to confirm the time and discovered that the compulsory conference had already been held and the order for dismissal made.
  • (b) In paragraph 9 of the second annexure to her statutory declaration she deposed:

...[O]n becoming aware of the orders made on 22 November 2007 I immediately instructed my legal representatives to make and prepare this application as soon as possible...

(c) In paragraph 5 of her affidavit the applicant deposed that her efforts to speak to her former solicitor since December 2007 had proved fruitless. Then in paragraph 6 of the affidavit she deposed:

This has occasioned the need to change solicitors and hampered and delayed the preparation of my application to review the orders made on 22 November 2007.

1. From that material it is tolerably clear that the "legal representatives" whom she first instructed to prepare the application for review were her former solicitors. It is also tolerably clear that she was attributing the failure to file the application for review in time to the failure of her former solicitors to obey her instructions to file the application immediately.
2. Of course I should not have had to draw inferences. The applicant ought to have given a full and forthright explanation expressed in clear language, not the opaque account I have set out above. In a written submission Mr Shaw made trenchant and valid criticisms of the explanation offered by the applicant for the failure to file the application for review in time.
3. Nevertheless, I accepted the explanation. I accepted that the failure to file in time was the failure of her former solicitors. That is a failure for which she personally was blameless. It was not suggested that the failure to file in time made it any more difficult for the respondent or the interested party to oppose and argue against the application for review. Accordingly I considered that I ought to exercise my discretion in favour of granting an extension of time, and I did.

1. In the annexures to her statutory declaration the applicant deposed that she had thought that the compulsory conference had been adjourned to 23 November 2007 and that her non-attendance on 22 November 2007 was the result of a mistake. In her affidavit she deposed that she had diarised the compulsory conference as being for 23 November 2007. Neither in her statutory declaration nor in her affidavit did she explain how the mistake was made. She had attended the compulsory conference on 3 September 2007 when, no doubt, the presiding Senior Member orally pronounced the order adjourning it to 22 November 2007 at 9.30am. She has not said that she did not receive a copy of the order. She has not said that she did not receive a notice from the registry of the date and time for the adjourned compulsory conference; she has said merely that she did not specifically recall receiving the notice. She deposed that both her husband and her Counsel also believed the adjourned date to have been 23 November 2007 and had diarised that date, although whether they believed that because she told them so, or vice versa, did not appear from the material.
2. All of that was not particularly satisfactory, and again Mr Shaw in his written submission justifiably made criticisms of its adequacy. I had no reason to doubt, however, that somehow a mistake was made about the date and that the non-attendance was not deliberate but was the result of the mistake. As the applicant did not assert that the mistake was somebody else's fault, I had to conclude that the mistake was her own fault, and that although she ought to have been aware of the right date she negligently noted the wrong date.
3. The applicant did not act reasonably, but section 120 does not require that an applicant for review has acted reasonably. It requires that the applicant for review has had a reasonable excuse for not having attended or having been represented. The futility of attempting to specify what is a reasonable excuse is obvious. What is a reasonable excuse will depend upon the circumstances of the case. The same reasons for giving a beneficent, liberal construction to the word "hearing" in section 120 apply for giving a beneficent, liberal construction to the phrase "a reasonable excuse" in the same section. I consider that generally a proferred excuse ought to be accepted as reasonable unless it is incredible or unless there is something about it which indicates bad faith. A deliberate failure to attend may (but need not necessarily) demonstrate bad faith. Negligence is not bad faith. It is inherently unlikely that an applicant in a proceeding will deliberately fail to attend a hearing or a compulsory conference in the proceeding. I have accepted that there was no deliberation in the present case. The applicant acted negligently, but I have accepted that she had intended to attend the adjourned compulsory conference and would have attended it had she not mistaken the date. Her excuse was reasonable.

1. In the affidavit material filed by the respondent and by the interested party, and in the written submission of Mr Shaw, there was emphasis upon the history of the proceeding and the numerous instances of the applicant's non-compliance with procedural directions. Despite that emphasis, it was not made clear how that history was said to bear upon the discretion that the Tribunal has to refuse an application for review under section 120 even when a reasonable excuse for non-attendance at a hearing has been given. I have already said that the history is deplorable. If the history had included previous omissions to attend or be represented at a hearing, the history would have been directly relevant to a determination of an application for review after a non-attendance, although the relevance would probably have been to the issue of whether a reasonable excuse for the latest non-attendance had been made out rather than to wider discretionary considerations.
2. I think that the most that could be said for the relevance of a history of other kinds of procedural defaults is that it tended to indicate a want of seriousness. An applicant who appears not to be serious about pursuing a proceeding might be thought to be less entitled to the exercise of a discretion in that applicant's favour than the applicant who had been diligently pursuing an apparently genuine claim.
3. The strength or weakness of the applicant's case in the proceeding generally is a relevant discretionary consideration, notwithstanding the difficulty in assessing strength or weakness of the case when dealing with an interlocutory application. There was no submission that the applicant's case was so weak that the discretion should be exercised in favour of refusing the application for review so that the other parties should not be put to the trouble of defending a weak case. So I have had no occasion to form any impression of how strong or weak the applicant's case is. She has filed witness statements. In volume they are substantial. Whether they have weight, as distinct from volume, remains to be seen. Although they have been filed tardily, their filing tends against a conclusion that the applicant is not serious about pursuing this proceeding.
4. A common reason for a court's refusal to set aside a default judgment is the prejudice that has been proved would occur to the party in whose favour the judgment has been given, or to strangers, who have acted upon the faith of that judgment, if the judgment were to be set aside. Similarly, evidence of such prejudice would be a very relevant discretionary consideration upon the hearing of an application for review under section 120. There is no evidence of prejudice in this case. It is true that at the same time as the order was made dismissing this proceeding an order was made striking out a related proceeding no. C4714/2005, in which Aldy Corporation Pty Ltd (the respondent in this proceeding) claimed indemnity from Ms Howard (the interested party in this proceeding) in relation to any monetary order made in favour of the applicant in this proceeding. That proceeding, however, may be reinstated. Prejudice in the form of costs wasted at the compulsory conference can be compensated for by an order for costs against the applicant. I made such an order for costs.
5. There was no good reason for exercising a discretion against the granting of the application for review and thus shutting out the applicant from exercising her prima facie right to have her case heard and determined on its merits. Accordingly I granted the application for review and made the orders on 1 April 2008 which have been set out in the authenticated order.