Victorian Civil and Administrative Tribunal|2006-03-27|Before: Bongiorno J

Milo Engineering (Sales) Pty Ltd v Quantum Superannuation Pty Ltd (Civil Claims) [2006] VCAT 455 (27 March 2006)

Civil claims - application for rehearing - relevant principles.

2. I set aside the orders made on 23 February 2006, acting under s120 of such Act.

3. Order Respondent to pay Applicants' costs thrown away of and incidental to the hearing on 23 February 2006. In default of agreement by 11 April 2006, I refer the assessment of the same to the principal registrar (according to Supreme Court Scale) under s111 of the Act.

4. I refer this matter to a directions hearing before any member.

1. Applicant is made under s120 of the Victorian Civil and Administrative Tribunal Act 1998 for review of orders made by Member Liden on 23 February 2006.

2. By paragraph 2 of those orders, the proceeding was determined in favour of the Applicants in the absence of the Respondent.

3. The affidavit evidence is to the effect that the Respondent via its solicitors did not receive notification of the hearing due on that date.

4. I do not consider I should reject that evidence.

5. Applying that evidence, the remarks of Bongiorno J in Alesci v Salisbury [2001] VSC 45 at [6] also apply - "It would be difficult ... to put forward a case where a blameless non-attending defendant would not be entitled to a review [of an] order made in his or her absence". These were quoted by me in my decision in Gosbell v Radovanovic [2005] VCAT 1594. Remarks in City of Whittlesea v Whittlesea CC [2005] VCAT 763 at [15] by Gibson D P (that "parties who fail to attend a hearing cannot complain if orders are made in their absence") cannot be accepted as universally so.

6. There is nothing I can identify in the conduct of the Respondent which would satisfy me it was not blameless.

7. There are considerable amounts involved in this litigation and it would be unjust, I consider, to shut the Respondent out.

8. I do not intend to do so. I rely also on s97 of the Act as well as s98 as it relates to natural justice.

9. I am not satisfied the application under s120 was filed late, but if it was, considering s97, it is a case where time should be extended under s126 by a day or so only.

10. Although often referred to as a separate requirement, there is nothing on the face of s120 that requires a defence on the merits actually to be shown. If, however, it is a requirement, I am satisfied in a preliminary way that there is enough of an arguable case on the merits which is alleged.

11. The orders made on 23 February 2006 are revoked.

12. I shall allow the Applicants' costs thrown away on the occasion of 23 February 2006 being satisfied under s109 of the Act that it is fair to do so.

13. The matter is referred to a directions hearing before any member.

Milo Engineering (Sales) Pty Ltd v Quantum Superannuation Pty Ltd

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Judgment (20 paragraphs)

Milo Engineering (Sales) Pty Ltd v Quantum Superannuation Pty Ltd (Civil Claims) [2006] VCAT 455 (27 March 2006)

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