Victorian Civil and Administrative Tribunal|2005-01-14

Melhem v Transport Accident Commission [2005] VCAT 25 (14 January 2005)

General List - transport accident - applications struck out - exercise of power to reinstate - Victorian Civil and Administrative Tribunal Act 1998 ss 78, 120

1

The time for making the application to reinstate the applications is extended to 11 May 2004.

2

The application to reinstate the applications for review is granted.

1

Mr Saad Mohamad Melhem, the applicant in these proceedings, was born in Lebanon on 15 January 1961. He was injured in a transport accident in Victoria on 7 April 1998 (the accident).

2

On 13 December 2000, the Transport Accident Commission (the Commission) determined that Mr Melhem's level of permanent impairment suffered as a result of the transport accident was 21%. On 24 January 2001, the Commission rejected his claim for loss of earnings benefits. On 15 February 2001, Mr Melhem, through his solicitors Secombs, lodged an application for review of those decisions. That application is G11158/2001.

3

On 20 July 2001, the Tribunal considered an application under s 115 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). It was an application to consider whether an offer of settlement made on 23 May 2001 had been accepted in accordance with the terms of s 114. As I understand it, the offer, had it been accepted in time, would have resolved Mr Melhem's claims at that time.

4

The Tribunal dismissed the s 115 application and the application for review was unresolved.

5

On 23 August 2001, the Commission rejected his claim for loss of earning capacity benefits. On 6 September 2001, Mr Melhem, through his solicitors, lodged with the Tribunal an application for review of that decision. That proceeding is G50529/2001.

6

On 2 October 2001, orders were made for the matters to be listed for compulsory conference and hearing together in February and March 2002 respectively. These dates were adjourned in January 2002.

7

As it turns out, Mr Melhem consulted other practitioners. Although those solicitors, Arnold Thomas & Becker, were never "on the record" as representing Mr Melhem, his first solicitors Secombs advised the Tribunal in May 2002 that they ceased to act for Mr Melhem, and a Directions Hearing was adjourned to July and again to 5 August 2002. At the 19 August 2002 Directions Hearing, a Ms Ioannou of the firm Arnold Thomas & Becker appeared for Mr Melhem.

8

On 19 August 2002, the Tribunal made orders listing the applications for an Administrative Mention on 30 September 2002.

9

There was no response to that Administrative Mention and eventually on 30 May 2003, the Tribunal listed G11158/2001 for a further Administrative Mention on 3 June. The Tribunal sent notice of the Administrative Mention to Mr Melhem at 5 Mitchell Avenue, Altona East which, as I understand it, was one of his brother's home address.

10

It seems, from the Tribunal's file, that no similar notice was sent for G50529/2001. Nor are there any copies on file giving notice of listing the matters for a Directions hearing on 7 July 2003, although the Commission apparently received notice because they appeared on that day.

11

There was no appearance for Mr Melhem and I made orders striking out the applications for review, with no order as to costs.

12

On 11 May 2004, Secombs, Mr Melhem's original solicitors, sought to reinstate the applications.

13

The reinstatement application was listed for 2 August 2004 but adjourned to 19 August 2004 because Mr Melhem was still in Lebanon.

14

The application was eventually heard before me on 16 November 2004.

15

Mr Melhem relied on his statements of 3 April 2001, 4 June 2004 and 10 October 2004 with their attachments in support of his application. He gave evidence and was cross-examined.

16

Mr Melhem also relied on statements from two brothers. He called one, Mr Abdul Karim Melhem. Mr Abdul Melhem gave evidence and was cross-examined. Mr Melhem also called Mr Lee Flanagan, solicitor of Arnold Thomas & Becker, who gave evidence and was cross-examined.

17

The Commission called Ms Francis who gave evidence and was cross-examined and relied on the affidavit of Ms Terranova.

18

Both parties then made written submissions, the last having been received on 13 December 2004.

19

The submissions of the Commission contain a convenient outline of the legislative framework and issues that are applicable in the circumstances. I agree with those submissions which were :

Section 78(1) and (2) of the VCAT Act gives the Tribunal the power to 'dismiss or strike out' an application on the basis of 'unnecessary disadvantage' caused by an applicant to a respondent. It is submitted that it is clear that the non-appearance of the applicant on 7 July 2003 fell squarely within s 78.

Section 120 of the VCAT Act permits a person in respect of whom an order is made to 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.

Section 120(4)(a) and (b) provides that the Tribunal may 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 '... if it thinks fit, order that the order be revoked or varied'. ...

Section 120(2) provides that the application to review the order is to be made '... in accordance with, and within the time limit specified by, the rules'. Order 4.18 of the VCAT Rules 1998 provides as follows : 'An application for review of an order under s.120 of the Act must be made within 14 days after the Applicant becomes aware of the Order'.

It is plain from Exhibits 'ACT-13' and 'ACT-16' exhibited to the affidavit of Antonella Terranova that the Applicant knew of the Order of 7 July 2003 some time prior to 3 March 2004. His statement of 4 June 2004 says that it was discovered that his application had been struck out 'shortly ... after' 16 February 2004. It is therefore apparent that the application to review the Order pursuant to s.120 of the VCAT Act is out of time. Section 126(2)(a) of the VCAT Act, however, enables the Tribunal on application by a party or on its own initiative to extend any time limit fixed by the Rules for the doing of any act in a proceeding. Clause 94 of Schedule 1 of the Act provides that s.126(2)(a) does not apply to a proceeding under the Transport Accident Act 1986. The Respondent takes no point in respect of clause 94 and for the purposes of this application accepts that it is an application discrete from the proceeding under the Transport Accident Act. Nevertheless, it is necessary for the Applicant, pursuant to s.126(2)(a) to satisfy the Tribunal that it is appropriate to extend the time limit that would otherwise apply under Order 4.18. The Respondent is unable to identify any particular reason for extending time, save that the Applicant would be without remedy under the Transport Accident Act if time were not to be extended. It is submitted that it is for the Applicant to establish the basis of an extension of time and the Respondent reserves the right to reply within the time limits set by the Tribunal at the hearing of this matter on 16 November 2004.

The remaining submissions are made on the assumption that time is extended and that s.120(4)(a) and (b) apply. In that event it is submitted that the issues before the Tribunal are :

(i)

did the Applicant have a reasonable excuse for not attending or being represented at the hearing?

(ii)

should the broad discretion constituted by the words 'if it thinks fit' be exercised by the Tribunal in any event in the applicant's favour?

20

Both parties made submissions. There is no need to repeat them.

21

The Commission made much of the fact that Mr Melhem, who had made numerous trips to and from Lebanon had returned to Lebanon and remained there for a period of 18 months. It is claimed he "slept on his rights". The Commission submitted that I should reject Mr Melhem's evidence that he believed that Arnold Thomas & Becker had continued to attend to all matters for him, and had assumed matters were proceeding without a problem, particularly so when it was his first solicitors, not Arnold Thomas and Becker, whom he contacted on his return to Australia.

22

They also claimed that the Commission would be prejudiced in a general sense were the applications reinstated, claiming it was difficult to see that the Commission will be able to fairly defend decisions made in 2001 and 2002 based on medical examinations in 2005 where Mr Melhem was overseas during the whole of 2003 and apparently divorced during that time.

23

It was submitted for Mr Melhem that he could not attend the Directions Hearing when his applications were struck out because he was in Lebanon at the time and was unaware of the Directions Hearing. At that time, it was submitted he believed Arnold Thomas & Becker were representing him, and the Tribunal file reveals that Arnold Thomas & Becker were never notified of that Directions Hearing or received a copy of the Tribunal's orders.

24

It was submitted his claim had merit, demonstrated by Deputy President Macnamara's decision with regard to the s 115 application concerning the offer to settle and terms of release that Mr Melhem had failed to accept in time.

25

So far as any prejudice is concerned, it was submitted for Mr Melhem that because his permanent impairment has already been assessed and because the periods in respect of loss of earnings and loss of earnings capacity benefits have already passed, there is no need to obtain any further medico-legal assessments and that, in any event, if there is any prejudice, it is towards Mr Melhem.

26

Alternatively, it was submitted that the requirement for Mr Melhem to attend the Directions Hearing was a procedural requirement within the meaning of s 126(2)(b) of the VCAT Act and that the Tribunal had discretion to waive compliance with any procedural requirement and should do so in this case.

27

I accept Mr Melhem's evidence that he was unaware of the Directions Hearing at which orders were made striking out his applications for review.

28

I accept that he engaged Messrs Arnold Thomas & Becker to represent him. It is not apparent that they ever advised the Tribunal they were acting on his behalf, but having heard Mr Flanagan's evidence, I accept his evidence that Arnold Thomas & Becker did act for him and did nothing to alter Mr Melhem's belief they had continued to act for him. I accept the evidence of Mr Melhem's brothers that they were unaware of the Directions Hearing.

29

Whilst it is not clear why Mr Melhem did not contact Arnold Thomas & Becker on his return to Australia in January 2004, if he believed they were attending to his case as he states, rather than consulting his original solicitors, the omissions of Arnold Thomas & Becker, whose notes have been mislaid, have clearly been a major factor in these matters not being pursued for Mr Melhem as they should have been. I do not accept the Commission's submissions that Mr Melhem "sat on his rights". I note he was overseas, his English ability is limited, and that he took the matter up again soon after his return to Australia.

30

In those circumstances, I am persuaded that I should exercise the discretion to reinstate the applications in Mr Melhem's favour.

31

Given the effluxion of time, as is suggested for Mr Melhem, any prejudice is more likely to be suffered by Mr Melhem.

32

Whilst it is clear that Mr Melhem did not apply to reinstate his applications within the 14 day period prescribed under s 120(2), I accept that he would have been unaware of this time limit and I am satisfied that the time for making the applications should be extended to 11 May 2004.

33

In these circumstances, it is not necessary for me to consider Mr Melhem's alternative submissions.

34

The time for making the application to reinstate the applications is extended to 11 May 2004 and Mr Melhem's application to reinstate his two applications is granted.

Melhem v Transport Accident Commission [2005] VCAT 25

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Melhem v Transport Accident Commission [2005] VCAT 25 (14 January 2005)

Parties