Pursuant to s126 of the Victorian Civil and Administrative Tribunal Act 1998 I extend the time for the applicant's compliance with the Tribunal's orders of 12 August 2003 from 8 December 2003 to 14 April 2004.

Mr N Dubrow of counsel instructed by Slater & Gordon

1 On 22 March 2002, the applicant, through her solicitors, lodged an application for review of decisions of the Transport Accident Commission (the Commission) made on 22 March 2001 and 22 August 2001. Those decisions reduced physiotherapy treatment sessions, ceasing them from 15 December 2001.

2 A perusal of the file indicates that the application has had a rather chequered history. For example, at a Directions Hearing on 11 November 2002, the Commission made an application supported by affidavit material to strike the application out on the basis t hat the applicant had failed to comply with a notice given under s 78 of the Transport Accident Act 1986. This was refused by the Tribunal.

3 The matter was then first fixed for hearing to commence on 6 May 2003. That date was vacated with the consent of the parties as a physiotherapist who was required to give evidence was unavailable. It was refixed to commence on 25 August 2003, being a date after 1 August 2003 as requested by the parties.

4 The applicant then sought to adjourn that hearing. The Commission did not consent to an adjournment, and wrote to the Tribunal on 25 July 2003 seeking an urgent Directions Hearing. A Directions Hearing was fixed for 12 August 2003.

5 At the Directions Hearing before me on 12 August 2003, both parties were represented by their lawyers. The applicant wanted a further adjournment because she had left for a trip on 5 August.

6 I granted the applicant's request and made the following orders :

1. Vacate hearing listed to commence on 25 August 2003.

2. List for Administrative Mention on 8 December 2003.

3. If the applicant wishes to proceed further with her application, she is to notify the Tribunal in writing on or before 8 December 2003 and in default her application will stand dismissed.

4. The applicant is to pay the respondent's costs thrown away by reason of the vacation of the hearing on County Court Scale "A" to be taxed in default of agreement.

7 Together with the orders on 13 August 2003, the Tribunal by letter advised the parties of their obligations with respect to the Administrative Mention. The parties were advised that on or before 8 December 2003, they should advise the Tribunal in writing as to the current status of the matter and the letter advised them that they were not required to attend the Tribunal on that date.

8 On 8 December 2003, the Tribunal received a fax from TAC Law in response to the Administrative Mention. TAC Law advised that it had not received correspondence from the applicant's solicitors to indicate whether their client intended to proceed with the application for review and advised they would await the Tribunal's notification in due course if the Tribunal heard from the applicant or her solicitors.

9 The file was referred to me on 10 December 2003. The Tribunal had received no advice or correspondence from the applicant herself or her solicitors as required by the order.

10 On 10 December 2003, I made an order dismissing the application. The order refers to this being by consent. That was an error. It was not dismissed with the consent of the parties but dismissed because I had foreshadowed on 12 August 2003 that it would stand dismissed if the applicant did not notify the Tribunal in writing on or before 8 December 2003 that she wished to proceed further with her application. The order on 10 December 2003 formalised the self-executing order.

11 The order was addressed separately to both parties at their respective DX addresses and they are marked Order Posted 12 Dec 2003.

12 Four months later, on 14 April 2004, the Tribunal received a letter from the applicant's solicitors. The letter refers to correspondence allegedly sent to the Tribunal on 10 December 2003, and enclosed a copy of that correspondence. The correspondence confirmed the Administrative Mention on 8 December 2003 and requested the matter be listed for a compulsory conference in approximately February 2004.

13 The matter was listed for a Directions Hearing on 28 April 2004. Because the matter was dismissed, I made orders for the filing of material and submissions in relation to the applicant's contentions that the Tribunal had power to entertain the application where it stood dismissed.

14 At the hearing, Mr Dubrow of counsel represented the applicant and Ms Magee of counsel represented the Commission.

15 Mr Dubrow sought an order of the Tribunal that the self-executing orders made be varied or revoked, to read 10 December 2003. He confirmed that on 19 November 2003, the day the applicant's serious injury application was resolved, his instructors had received instructions from the applicant to pursue this application for review.

16 Mr Dubrow submitted that the Tribunal had power to vary or revoke its order under s 131 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) which gives power to the Tribunal to vary orders or directions as to procedure. Alternatively he submitted it was possible to use s 119 of the VCAT Act which can be used for correcting mistakes.

17 He further submitted that the Tribunal could use its power under s 126 of the VCAT Act which allowed for the extension or abridgement of time, even if time has expired. He submitted that if the Tribunal extended time, there was no prejudice to the Commission, given that this was merits review and the Commission would not be taken by surprise by any of the issues.

18 He did not press his application under s 119, rightly in my view. As to the application of s 131 he submitted that the order dismissing the application was a procedural order. The matter had not been heard on its merits and so it should be regarded as an interlocutory order, which can be varied. He referred me to a number of cases.

19 Ms Magee submitted that on 10 December 2003, the Tribunal had made a formal order dismissing the application for review and, in those circumstances, the Tribunal is now functus officio and cannot recall its own order dismissing the application. Counsel referred to a decision of the High Court of Australia Bailey v Marinoff [1971] HCA 49; [1971] 125 CLR 529.

20 Ms Magee referred to the distinction between the dismissal of an application for review and an order striking out an application. She referred to the comments of Warren J, as she then was, in Tanska v Transport Accident Commission [2000] VSC 56 at para 16. The fuller version of that quotation is as follows :

The first matter to be considered is whether a proceeding once struck out can be reinstated. The striking out of a proceeding is a different matter to that where, for example, a proceeding is dismissed or a judgment is ordered. In the latter examples the matter has usually been determined on the merits and a disposition has occurred.

21 Further, Ms Magee referred to the comments of Deputy President Macnamara in Hill v Baylight Homes [2000] VCAT 1860 para 12, as to the application and meaning of the doctrine functus officio :

This is an application of a doctrine which is summed up by a Latin phrase 'functus officio'. What it means is that once the Tribunal has decided a matter once and concluded the proceeding, it cannot go back and do it a second time, or modify one that is already done subject only to the exceptions that I have already mentioned. Neither of those exceptions applies, and therefore I must dismiss this application.

22 In relation to the application of s 126 of the VCAT Act, Ms Magee submitted that it had no application, relying solely on the doctrine of functus officio. She identified no particular ground of prejudice to the Commission, should time be extended.

23 Neither counsel referred me to two very pertinent decisions. One of the High Court that post dates Bailey v Marinoff and a more recent decision of the Supreme Court of Victoria.

24 It is now clear, following the decision of the High Court in FAI General Insurance Company Limited and Ors v Southern Cross Exploration NL and Ors [1988] HCA 13; (1988) 165 CLR 268, that in a situation such as the one I am faced with, that I do have power to extend the time for compliance, despite the self-executing order, and despite the fact that the time for compliance with the order has already expired.

25 The Tribunal considered a situation similar to the present one in Ng v Rockman [1999] VCAT 31. In that case, the Tribunal had made a self-executing order to the effect that if further and better particulars were not filed and served by a particular date, the proceeding against the defendants would stand dismissed.

26 The orders were not complied with and when called upon to consider whether there was any proceeding in which the time for compliance could and should be extended the Tribunal found that although it had power to set aside the self-executing order, it declined to do so.

27 On appeal to the Supreme Court, there is a clear endorsement of the view that the Tribunal did have the power to set aside the self-executing order. In Ng v Rockman [1999] VSC 470, Beach J at paragraph 9 commented :

On 3 June 1999 the tribunal found that although it had the power to set aside the self executing order (which it undoubtedly did), that in the exercise of its discretion it would not do so.

28 Do the orders made by the Tribunal dismissing the application for review mean that nothing more can be done? In light of the cases referred to above and applying s 126 of the VCAT Act, I am satisfied I do have power to extend time for compliance, despite the order dismissing the application.

126. Extension or abridgment of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may--

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

"relevant enactment" means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

30 Specifically sub-sections (2) and (3) permit the Tribunal to extend time for compliance even if the time period for compliance has expired. Here, the time sought to be extended is a time set by the Tribunal in accordance with its powers under the VCAT Act.

31 In the circumstances of this case, I am inclined to exercise the power to extend the time for compliance for the avoidance of doubt to 14 April 2004, being the date the Tribunal's records show it first received the correspondence from the solicitors, demonstrating the intention to proceed further with the matter.

32 In exercising the discretion I am mindful that the matter has not been determined on its merits, that the applicant's solicitors admit that they were at fault and that no prejudice to the Commission which could not be remedied by an order for costs was identified by the Commission, such that the interests of justice favour the success of the applicant's application to extend the time for compliance.