a) Documents in its possession or control or in the possession or control of its agent or agents being documents not listed in any previous affidavit or list of documents which are relevant to the proceedings whether on the claim or on the counterclaim;

b) Documents in its possession or control or in the possession or control of its agent or agents being documents referred to in any witness statement filed on behalf of the Applicant (not listed in any previous affidavit or list of documents) which are relevant to the proceedings whether on the claim or on the counterclaim;

c) Documents which used to exist but which no longer exist and were in the possession or control of the Applicant but which are relevant nonetheless to the proceedings whether on the claim or on the counterclaim. In the case of such documents the Applicant must specify when it last had possession or control of the same and must state its belief or knowledge as to their current whereabouts or as to what has become of them.

3. The Applicant must comply with paragraph 2 by 4:00 pm on 31 May 2002.

4. If the Applicant fails to comply with paragraph 2 as provided by paragraph 3, the Application shall stand as dismissed.

5. The Respondents must file and serve a supplementary affidavit of documents listing:

a) Documents in their possession or control or in the possession or control of their agent or agents being documents not listed in any previous affidavit or list of documents which are relevant to the proceedings whether on the claim or on the counterclaim;

b) Documents in their possession or control or in the possession or control of their agent or agents being documents referred to in any witness statement filed on behalf of the Respondents (not listed in any previous affidavit or list of documents) which are relevant to the proceedings whether on the claim or on the counterclaim;

c) Documents which used to exist but which no longer exist and were in the possession or control of the Respondents but which are relevant nonetheless to the proceedings whether on the claim or on the counterclaim. In the case of such documents the Respondents must specify when they last had possession or control of the same and must state their belief or knowledge as to their current whereabouts or as to what has become of them.

6. The Respondents must comply with paragraph 5 by 4:00 pm on 31 May 2002.

7. If the Respondents fail to comply with paragraph 5 as provided by paragraph 6, the Counterclaim shall be stayed until compliance.

8. The Applicant, upon 48 hours' notice to be given after 31 May 2002, must provide the Respondents with a reasonable opportunity to inspect and photocopy any of the documents referred to in paragraphs (a) and (b) of paragraph 2.

10. The Respondents, upon 48 hours' notice to be given after 31 May 2002, must provide the Applicant with a reasonable opportunity to inspect and photocopy any of the documents referred to in paragraphs (a) and (b) of paragraph 5.

11. I direct that this proceeding be returned to a directions hearing after 7 June 2002.

1. Application is made by the Respondents for a determination that the claim of the Applicant stands dismissed. That application is opposed.

2. Arising as relevant is the direction made on 16 November 2001 in paragraph 1 as follows:

"1. The date by which the Applicant is to comply with Directions 5 and 7 of the Directions dated 30 August 2001 is extended to 10:00am on 20 November 2001 - the Affidavit required pursuant to Direction 5 shall include all details in relation to the Certificates (if any) and the Policy of Insurance in relation to the builder's warranty insurance, together with details of all premiums paid including premiums for "run-off" cover."

3. That direction refers to directions 5 and 7 made on 30 August 2001, which are themselves as follows:

"5. By 4 October 2001 a party must file and serve an affidavit setting out the last known whereabouts, and (if known) present whereabouts, of any document(s) relevant to the proceedings no longer in the possession or control of that party."

"7. By 25 October 2001 the Applicant is to file and serve Reply and Defence to Amended Counterclaim."

4. There is no doubt that the Tribunal does have power to make self-executing orders. Equally, there is no doubt that in an appropriate case the Tribunal also has power to set aside or to vary a self-executing order. It has power to do this even if the time for compliance has passed. On the other hand the case may be rare or unusual where that power to set aside or vary is exercised, because a self-executing order is normally included in directions where there has been a proven record of non-compliance. In this particular case, I quote from the Affidavit of Mr Crea sworn on 22 February 2002 in paragraph 8 that "I acknowledge that there have been very many instances on the part of the Applicant in failing to comply with directions and orders of the Tribunal with regard to the completion of interlocutory matters."

5. Equally there is no doubt that in the exercise of its powers, the Tribunal must comply with the duty of fairness specified in s97 of the Victorian Civil and Administrative Tribunal Act 1998 and must have regard also to the requirements set out in s98 of such Act. Further, it must follow the ruling of the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 141 ALR 353. I refer to the comment of the joint majority in that case at page 357 that "Justice is the paramount consideration in determining an application such as the one in question." That comment applies here.

6. If I were to determine that the self-executing order made in this case on 16 November 2001, and referred to in paragraph 2 of these Reasons, were to take effect, I would need to be satisfied that the directions made on that occasion were clear and lacking ambiguity. It should not be the case, as authorities show, that significant doubts should be possible about the terms of a self-executing order. In my view the order in this case made on that date is ambiguous and does lack clarity. In the first place, it refers to an affidavit being required to include all details in relation to Certificates of Insurance "(if any)". The order operates understandably enough if such Certificates do or did exist. However, it fails to specify what should happen should there be no Certificates of Insurance. It does not specify that an Affidavit should then still be sworn. That is a matter which is left unspecified by the direction and contributes to its lack of clarity and provides for its ambiguity. In the second place, in extending time under the directions made on 30 August 2001, referred to in paragraph 3 of these Reasons, it introduces a note of uncertainty in that those directions do not satisfactorily deal with a situation where documents no longer exist at all or are not in anyone's possession or control whatever. The natural implication arising from those directions is that they are referring to documents that still exist but are in someone's possession or control if not that of the Applicant. The directions do not, in my view, carry any natural implication of dealing with documents, as I say, which no longer exist at all. This point, however, seems to have a subtlety to it that Counsel for the Respondents apparently would not comprehend.

7. In my view, it follows that the order made on 16 November 2001 do not justify a determination that their self-executing nature has taken effect. This is a matter of the Tribunal's duty - it is not an "indulgence" as it was described. If however that were not so, I could not be satisfied on the materials, despite the detailed submissions made, that there has not been by the due date or shortly afterwards a substantial compliance with such orders. In any event, if there has been a non-compliance with such orders, I am satisfied that it is of a technical nature but one apparently of importance to the Respondents.

8. Considering my comments in paragraph 7 of these Reasons I would be prepared, in any event, to extend time under s126 or to vary the orders under s130 of the Victorian Civil and Administrative Tribunal Act 1998. I have this as my view, despite the acknowledged history of non-compliance by the Applicant, because I am satisfied that otherwise I could do an obvious injustice. Were I not to do so, that is, extend time or vary orders as appropriate, a claim in the vicinity of $80,000, so I am told, would stand dismissed without any determination on the merits. And that would be so in this case where the parties have gone a considerable way down the path towards a hearing in due course and have incurred considerable expense. Moreover, apart from not securing the benefits of, in effect, a judgment in default, I am not satisfied that there would exist any independent prejudice arising from an extension of time or a variation. There might exist annoyance, but that is a different matter. But to fail to extend time or vary as appropriate, would, I am satisfied, do a substantial injustice to the Applicant in preventing it from being able to advance a claim in a Tribunal of the land set up for the purpose. And I say this even though I draw attention again to the long history of non-compliance with directions acknowledged by the Applicant.

9. Accordingly I determine that the proceedings so far as the claim is concerned do not stand as dismissed either by virtue of the orders made on 16 November 2001 or otherwise.

10. In any event, so as to give effect to my comments, I vary the orders made on 16 November 2001 accordingly.

11. Applications are made by both the Applicant and the Respondents for costs. Costs may only be awarded by the Tribunal under s109 of the Victorian Civil and Administrative Tribunal Act 1998 excluding a s75(2) situation**.** In order to depart from the position set out in s109(1) I must be satisfied under s109(3) that it is fair to do so having regard to the matters specified in that provision. One such matter is whether a party has conducted a proceeding in a way that has unnecessarily disadvantaged another party to the proceeding. See s109(3)(a). Another matter is any other matter the Tribunal considers relevant. See s109(3)(e). As regards the Respondents, they have not succeeded in the application made by them that the self-executing order has taken effect. They have, therefore, lost their application. Normally, consideration would be given in such circumstances to an order for costs against them. A question would be, however, whether it is not the orders made on 16 November 2001 which are themselves at fault. However, as regards the Applicant, whilst it has successfully opposed the application made by the Respondents, its position is one where there has been a long and acknowledged history of non-compliance with directions and orders. That being so, the contention of the Respondents in seeking to maintain that the self-executing order had taken effect is, in a sense, quite understandable. The Applicant's conduct has been deplorable in this respect. In all of these circumstances, it seems to me it would be unfair to order that either that the Respondents pay the Applicant's costs or that the Applicant pay the Respondents' costs. I am not satisfied, considering s109(3)(a) and (e) that I should depart from the position specified in s109(1) to make any order under s109(2). The result is that each party must bear its own costs.