(iii) Correspondence between Tress Cox Lawyers, solicitors, on behalf of its client "Lorinn Consulting Services Pty Ltd" alleging that Buildspect owed money to that company, and Wainwright Ryan Eid, solicitors for Buildspect, in September 2012. One of the letters from Ryan Wainwright Eid made the point that the consultant named in the consultancy agreement was Mr Lorich, not the company.

1. In Points of Claim (undated) filed in the proceeding Mr Lorich stated:

I supplied Consultation Services to Buildspect in the period (12 mths) after selling my share of the company to the current directors and they have never paid the last invoice for my services as a Building Consultant.

1. It is the Tribunal registry's practice to serve a respondent with a copy of the initiating application but not a copy of any attachments, leaving to the applicant the responsibility of serving the attachments upon the respondent. I do not know whether Mr Coghlan or anyone else for Buildspect saw the attachments before the date of the hearing before me. Neither Mr Coghlan's affidavit nor Mr Silver's written submission made any mention of the company Lorinn Consulting Services Pty Ltd. The oral submissions on the day did not mention it until I pointed out that the attachments to the initiating application made reference to it.
2. The Tribunal's order made by the first Member on 4 September 2018, for payment to "Robert Lorich Lorinn Consulting Services", probably has the effect of imposing an obligation upon Buildspect to pay $24,342.67 plus $668.30 to Mr Lorich personally. The documents to which I have referred, however, raise a question of whether the order was made in favour of the right applicant. It may be that Mr Lorich was the only person to whom Buildspect was ever liable to pay any money and that the allegations in correspondence that the creditor was Lorinn Consulting Services Pty Ltd were a mistake. Or it may be that somehow after the consultancy agreement was signed there was a novation and Lorinn Consulting Services Pty Ltd replaced Mr Lorich personally as the consultant.
3. The confusion about the identity of the named applicant, the identity of the beneficiary of the order and the identity of the legal entity which had a cause of action against Buildspect has had a bearing upon my decision to grant Buildspect leave to make a second application for review of the order made against it and for a re-hearing of the proceeding.

1. Mr Silver submitted that the contents of Mr Coghlan's affidavit were new evidence that had become available after the dismissal of the first application for review so they entitled Buildspect to make successfully an application for leave to make a second application for review. He relied upon a decision of the Supreme Court, Guss v Magistrates' Court of Victoria ("Guss").[2] That case dealt with an order of the Magistrates' Court that Mr Guss had to obtain the leave of the court before making a third application to set aside a default judgment. In that case Batt J referred to, and said that he was applying, a decision of the Court of Appeal, D.A. Christie Pty Ltd v Baker ("Christie")[3] to this effect:

Their Honours relied on the principle relating to abuse of process, holding that a second application is an abuse of process unless there is proof of fraud or it is sought to adduce "fresh" evidence, in the sense used in relation to admission of evidence in appeals. If the evidence was available at the time of the first application and there is no explanation of why it was not then put forward, then, at least, the second application will constitute an abuse of process.[4]

His Honour then referred to other authority which, he said, showed that:

.... except where there has been a dismissal of the first application for a technicality or where there is fraud or where new evidence becomes available after the dismissal of the first application, a second application is almost certainly doomed to failure. Statements to that effect seem to me to recognise that the judicial officer hearing the second or subsequent application need not reconsider any of the material considered on earlier applications, save of course to the extent necessary for comparing the corpus of material before him or her with that before his or her predecessor in order to ascertain what is new material.[5]

Those statements were about when a second interlocutory application, after the failure of the first, is an abuse of process. Mr Silver submitted that they supported the proposition that if the second application is not an abuse of process because fresh evidence had become available then leave should be given to make the second application.

1. Mr Silver also submitted, correctly, that those passages in the judgment of Batt J, in Guss were cited with approval, and followed, in another decision of a single judge[6] that a second application for a re-hearing of a default judgment in the Magistrates' Court was an abuse of process because the material put forward in support of it was not new evidence; it was evidence that was available to the applicant at the time of the hearing of the first application which had failed.
2. If that were now the state of the law, I think that Buildspect would be in some difficulty in establishing that the evidence in Mr Coghlan's affidavit was new evidence that was not available to Buildspect when its application for review and re-opening was heard and dismissed. The explanation for non-appearance at the hearing on 4 September 2018 was that he had carelessly recorded the wrong date and had carelessly failed to check it. His affidavit did little more than add some circumstantial detail as to why his attention at the relevant times was distracted to other things. Whether the possible error in the identity of the correct claimant in the proceeding was information available to Buildspect on 21 December 2018 when its application for review was heard and dismissed is something about which there has been no evidence.
3. There have been developments in the case law, however, since Batt J's decision in Guss.
4. In Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd ("Tenth Vandy")[7] Hargrave J dealt with the appeal from a Master's dismissal of a second application for reinstatement of a proceeding when an earlier application for reinstatement had been refused. The defendant, the respondent to the appeal, argued that the second application was an abuse of process and relied upon Batt J's decision in Guss. Hargrave J declined to follow Guss because he considered that Batt J had wrongly regarded the Court of Appeal decision in Christie as having established a rule of general application and because other authority in appellate courts in Victoria and New South Wales had cast doubt upon the correctness of Christie. His Honour concluded that the correct approach to apply to second interlocutory applications had been expressed by appellate courts to be this:

.... "the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case".[8]

Accordingly, his Honour concluded that he was not bound to decide that the second application for reinstatement would be an abuse of process unless there were "new evidence".

1. The most recent relevant authority is that of the Court of Appeal in Racovalis v Rescom Mortgages Pty Ltd.[9] In deciding that an application to set aside a default judgment was not an abuse of process, a County Court judge had stated that Christie did not impose a general rule applicable to all interlocutory applications and had followed the approach of Hargrave J in Tenth Vandy by determining the abuse of process question according to whether it was in the interests of justice to permit a party to make a second application to set aside the default judgment. Approving the County Court judge's approach, the Court of Appeal said:

Considerations relevant to whether a second application to set aside a default judgment is an abuse of process will vary from case to case. They will usually include the effect on a party who, having been successful in opposing an application, is faced with a second application; the effect of any delay in making a second application; whether there was an explanation for the new material not being provided to the court on the earlier application; the nature of that material; and whether a fair trial can be held. The evils of permitting a second application include the risk of conflicting decisions; the unnecessary vexing of respondents; judge shopping; the diminution of certainty in the conduct by litigants of their affairs; and adverse consequences to the administration of justice.[10]

1. I therefore approach Buildspect's application by considering whether it is in the interests of justice to permit it to make a second application for review and re-opening, despite the doubt about whether there is new evidence that has become available since the first application was heard and dismissed.

1. While it is not my task to decide whether Buildspect has a reasonable case to argue in relation to the subject matter of the order of 4 September 2018 against it - that is the task of the Member who hears the second application for review, if there is one - the prospects of Buildspect successfully putting forward a submission that it has a reasonable case to argue are a matter that I need to consider, because of the reality were to be that its prospects were hopeless in that respect there would be no point in granting the application for leave to make the second application for review.
2. In his affidavit Mr Coghlan deposed that under the consultancy agreement with Mr Lorich Buildspect became liable to pay a consultancy fee only when the client (introduced by Mr Lorich) paid Buildspect, irrespective of the date of Mr Lorich's invoice for the fee. He deposed that "the vast majority of what Mr Lorich is claiming predates 6 April 2018 (the application date)[11] by more than 6 years", and that the claims that were less than 6 years old totalled only $4,245.00. Thereby he was invoking the defence available under the Limitation of Actions Act 1958 s 5(1)(a) in relation to a debt that became owing more than 6 years before a proceeding to recover it was commenced.
3. As the consultancy agreement was expressed to begin on 1 October 2010 and to be of 12 months' duration, it is not out of the question that some of the claims for consultancy fees were statute-barred at the time that this proceeding began. Mr Coghlan appeared to concede that claims totalling $4,245.00 were not statute-barred. He did not assert in his affidavit that Buildspect had any other defence to those claims totalling $4,245.00. However, there is a discrepancy between amounts claimed in correspondence attached to the application, and the amount claimed in the application itself, have been owing.

1. The defence based upon the Limitation of Actions Act is not a meritorious defence, but it is one that the law allows and I cannot say that Buildspect has no prospect of successfully defending the proceeding, at least in part, if it gets another opportunity to defend it.

1. It would be open to any Member hearing another application for review, if I were to give leave for one to be made, to decide that the raising of the limitation-of-actions defence to the bulk of the claims would be prejudice to Mr Lorich that could not be compensated for satisfactorily. I accept, however, Mr Silver's submission that the question of prejudice is not one that I should address and that it should be left to the Member who hears the new application for review, if I allow one to be made.
2. Mr McPhee told me that his client had incurred expense in registering the Tribunal's order dated 4 September 2018 in the Magistrates' Court and in paying fees to the sheriff's office when a warrant was issued. Prejudice of that kind can be compensated for satisfactorily by the making of an order that Buildspect pay the costs thrown away upon a successful application for review.

1. I have considered the potential "evils of permitting a second application" identified in the judgment in Racovalis v Rescom Mortgages Pty Ltd.[12] To the extent that they exist in relation to the application for leave that I have heard, I conclude that they are outweighed by the following considerations.
2. First, there is doubt about whether the proper applicant in the proceeding was Mr Lorich or his company. The matter ought to be investigated. If there is a real chance that there has been an order made in favour of a person who was not entitled to it, the interests of justice would require that the order should not be permitted to stand.
3. Secondly, a Member who reads the continuous narrative and more coherent explanation that Mr Coghlan gave in his affidavit for Buildspect not attending the hearing on 4 September 2018 may come to a different view about whether there was a reasonable excuse. Mr Coghlan's evidence in his affidavit shows that he did not act reasonably, but the test in s 120 of the VCAT Act is not whether a person acted reasonably; it is whether there was a reasonable excuse. A person may act foolishly, even negligently, but still have an excuse that stands to reason.
4. Finally, there is the very important consideration that Buildspect has become liable to pay a large sum of well over $20,000.00 without having been heard on the merits (including the legal merits) of the claim against it.

1. For those reasons I give Buildspect leave to make a second application for review and re-opening of the order made on 4 September 2018.

[1] Victorian Civil and Administrative Tribunal Rules 2008, r 4.18(2).

[2] [1998] 2 V.R. 113.

[3] [1996] VicRp 89; [1996] 2 V.R. 582.

[4] [1998] 2 V.R. 113 at 123.

[5] [1998] 2 V.R. 113 at 124.

[6] Stragan & Co Pty Ltd v Christodolou [2002] VSC 78 (Beach J.).

[7] [2006] VSC 170.

[8] [2006] VSC 170 at [46].

[9] [2010] VSCA 55; (2010) 28 V.R. 250.

[10] [2010] VSCA 55; (2010) 28 V.R. 250 at 255.

[11] Although the application was dated 6 April 2018, the filing fee was not paid until 13 April 2018, so it is likely that 13 April 2018 was the date of commencement of this proceeding.