Koukourou & Partners Pty Ltd (ACN 007 739 157) In liquidation

2. Reserve liberty to other parties to make any application(s) for costs.

3. Direct this matter be listed before me for further directions as soon as reasonably convenient. Allow 2 hours.

1. This is an application being made by Gerling Insurance Australia Ltd ("Gerling") which is the Joined Party in these proceedings.

2. Gerling is not joined in its application by any other party. An affidavit of Peter Moriarty, solicitor sworn 3 December 2004 has been filed in support.

3. Because the application has been made, and I have needed time to consider it, the hearing scheduled for 20 January 2005 has had to be adjourned off.

4. Gerling has persisted in its application despite concessions which, I understand, have passed between the parties.

5. On 8 November 2004 I dismissed an application made under s120 of the Victorian Civil and Administrative Tribunal Act 1998 to have orders I made on 5 March 2004 set aside. I reserved liberty to apply for costs. I did not reserve liberty otherwise. I considered the matter over and finalised, except as I indicated. I directed that the matter be listed for further directions as soon as reasonably convenient.

6. In summary, I dismissed the application because I was not persuaded that s120 of the Act was satisfied. In the first instance, I considered that the Fifth Respondent (then known as Koukourou & Partners Pty Ltd) did appear or was represented at the hearing on 5 March. Alternatively, I indicated I was not satisfied that the Fifth Respondent had a reasonable excuse for not attending or being represented. In any event, it seemed to me that the application was out of time and I did not consider that I should extend time under s126 of the Act. In that latter regard, I indicated I did not consider that the materials before me enabled me properly to form a view about the merits of the Fifth Respondent's case should I be required to do so.

7. No party appealed the orders I made on 5 March 2004. Nor has the Fifth Respondent (resurrected as ACN 007 739 157 Pty Ltd) or Gerling sought to appeal the orders I made on 8 November.

8. Instead, by letter dated 15 November 2004, Gerling has sought to make an application that I should, in effect, revisit my own orders. In that letter Gerling refers to "two matters" which it considers need to be dealt with:

"Firstly, there are a number of issues arising out of Senior Member Cremean's decision of 8 November 2004, including the apparent omission in his reasons for decision of any reference to the submissions that were made as to the "illegality" of the second respondent's claim against Koukourou in respect of which judgment has been given by virtue of the Tribunal's orders of 5 March 2004.

Secondly, our client [Gerling], which is conducting this matter on behalf of Koukourou, is uncertain as to whether it will be permitted to participate in the hearing of this matter, including whether it may adduce evidence and be heard at the hearing."

9. It is said to me that Gerling became aware of the 5 March orders only on 10 March. I do not know how this came about, if it is so. I do not know whether, at that point, Gerling had undertaken to conduct the matter on behalf of Koukourou or not. It certainly says it is doing so now. For a time, the Fifth Respondent went out of existence and, presumably, during that time, Gerling was not troubled by these proceedings. Nor can I say whether Gerling has any right of indemnity or contribution (which could give rise to a conflict of interest) arising out of the defaults of Kourkourou that lead to the 5 March orders.

10. In any event, Gerling contends that the orders I made on 5 March are bad in law and it contends that the orders I made on 8 November are in error. I would have thought that, in such circumstances, the appropriate step to take would be to appeal my orders under s148 of the Act. But, as I say, no appeal has been filed. I must indicate that I found the explanation for not having filed appeal somewhat unconvincing.

11. The high point, I think it was called, of Gerling's application on this occasion was s119 of the Act. It was submitted that, in my orders made on 8 November, I had made a mistake or mistakes including a failure to appreciate that s98 of the Act, relating to natural justice, was called in aid. In particular, it was submitted that under s119(1)(b) there was "error" which was evident "arising from an accidental slip or omission."

12. In that latter regard, it was submitted that there were matters which I did not refer to in my Reasons which, on a plain reading of them, I did not appear to have considered. On this basis, they might be, it was argued, accidental slips or omissions. I have already mentioned the contention that I failed to appreciate that s98 was being called in aid. But it was also submitted that one matter I omitted to consider was this: that if the 5 March orders were left to stand then the Second Respondent ("Brady") would be granted relief against Koukourou which is (alleged to be) prohibited by law. Another matter it was submitted I omitted to consider is that any delay between the application first being considered by the Tribunal on 7 April 2004 and it being re-visited on 29 October 2004 was due to the time taken by Brady to decide which course it was going to adopt i.e. either seek to have Koukourou reinstated or make a claim directly against Gerling.

13. Aside from anything else, it seems to me that this use of s119 is misconceived. In my view s119 deals with errors or mistakes in orders and allows them to be corrected. It is of limited ambit and is commonly referred to as "the slip rule". It does not operate, in my view, as a vehicle of appeal to allow re-argument or the re-putting of matters going to substantive issues. Matters going to substantive issues, if alleged to have been overlooked, must be addressed, in my view, if at all, by way of appeal under s148. The provisions of s119 are not an alternative to the appellate procedure provided for by the Act: see Dudzinski v CenterlinkI [2003] FCA 308 at [II]. See also Altona North Landfill Pty Ltd v Hobson's Bay CC [2004] VCAT 78.

14. The matters being raised by Gerling, as matters I allegedly did not consider, are, in my view, all matters of a substantive kind that fall well outside the scope of s119. They are all matters which involve a re-arguing of the merits on the issues, at least to some extent. But that is not in the nature of an accidental slip or omission as something which was, accidentally, overlooked. I emphasize that s119 is not a vehicle of appeal in this sense, in my view. The vehicle of appeal under the Act is s148, not s119. Gerling cannot achieve under s119 what it should be looking to do, if at all, under s148. That is why s148 exists.

15. Nor do I intend to go behind the orders I made on 8 November 2004 and become, in effect, my own appellate body. If Gerling is troubled by those orders, it has its remedy, if at all, under s148 of the Act. I would add that it cannot be assumed, either, that, if something is not mentioned in Reasons, it was necessarily not considered. See Penfold v Penfold [1980] HCA 4; (1980) 28 ALR 213 at 216 per Stephen, Mason, Aickin and Wilson JJ. Not every matter considered by a Court or Tribunal in its deliberations necessarily appears in its Reasons. See also McKinnon v Cowban [2004] VSC 380 at [14]. I can say this too: I am satisfied that all matters put to me, I duly considered. Gerling was represented at the hearing on 29 October and was duly heard. It had an adequate opportunity then to put to me all the matters it wished me to consider.

16. So, for these various reasons, I reject Gerling's attempt to rely on s119 to have me alter my orders. Gerling also claims, however, that the orders I made on 5 March constitute an irregularly entered judgment that I may set aside ex debito justitiae and irrespective of the merits of the party applying. It is argued by Gerling that the legal impediment to the 5 March orders renders them "akin" to an irregularly entered judgment which I can recall or set aside "as of right." I was taken to several authorities in that regard said to support Gerling's position. I mention in particular Windsor v Chalcraft [1938] 2 All ER 751 and Kabat Investments Pty Ltd v Compleat Imports Pty Ltd [2002] VSCA 134.

17. Gerling, I consider, overstated the position of the Tribunal. It was too generous of its powers. The Tribunal is not a superior court of law having inherent jurisdiction. The Tribunal has no inherent jurisdiction at all, and cannot lay claim to powers which are properly exercisable only by those who do exercise inherent jurisdiction. The Tribunal does not have a general power of recall. Once final orders are made in a matter, the Tribunal becomes functus officio. I consider that was the effect of my orders on 8 November. It is then for a party to decide whether to appeal or not under s148. If, however, there is, in some way, a power of recall, after a matter has passed into judgment and has been perfected, it can only arise, in my view, in a case of necessity. See comments of Buchanan JA in Kabot Investments. But Gerling has not established, in my view, that this is a case of necessity at all.

18. I do not intend to sit on appeal from my own decision. I am quite unpersuaded in any event that the orders I made on 5 March 2004 are, on their face, bad in law and thus irregular. Having heard from Counsel, it seems to me that the orders I made on that occasion are consonant with s131 of the Building Act 1993. Any question concerning s132 of the Act and its application can only arise, in my view, following a hearing - and only then if certain orders are made as a result. But that is very far from saying that the orders I made on 5 March are bad in law on their face as involving infringement of s132.

19. Gerling, in its submissions to me, also claimed a right to analyse various points I covered in my Reasons on 8 November. It seems to me that this is something Gerling should be doing elsewhere rather than before me. As I say, I decline to sit in judgment on appeal from my own decision. If Gerling is serious in its contentions then, it seems to me, it should be acting under s148, if so advised.

20. I reject each of Gerling's arguments in support of its application which I dismiss.

21. I reserve liberty to the other parties to make any application(s) for costs.

22. I direct this matter be listed before me for further directions as soon as reasonably convenient.