Ng v Rockman [1999] VSC 470

11. At the hearing that day counsel for the first defendant made application to the tribunal that a self executing order be made against the plaintiffs if they failed to file and serve further and better particulars of their counterclaim. The tribunal acceded to the application and ordered that the plaintiffs file and serve further and better particulars by 6 May 1999 failing which their proceeding against the first and second defendant would stand dismissed and they would be required to pay the costs of the first and second defendant.

14. Between 4.30 p.m. And 4.45 p.m. On 6 May 1999 the solicitor for the plaintiffs sent by fax to the solicitors for the defendants, and to the tribunal, the plaintiffs' further and better particulars of their counterclaim. The solicitors for both defendants took the view that by virtue of the provisions of s.141 of the Victorian Civil and Administrative Tribunal Act 1999 the plaintiffs' counterclaim had by then been dismissed. Section 141 of the Act so far as is relevant reads:

"141. When is service effective - (2) if a facsimile or other electronic transmission is received after 4 p.m. On any day it must be taken to have been received on the next business day."

and so strictly speaking the plaintiffs had not complied with the self executing order and their counterclaim therefore stood dismissed by virtue of the operation of the order.

19. On 13 May the plaintiffs issued a summons and filed affidavits returnable before the tribunal on 20 May seeking to have their counterclaim reinstated. They also sought an order that the time for compliance with the self executing order of 22 April 1999 be extended by one day.

22. The application came before the tribunal on 20 May. The first defendant appeared in person and did not make any submission in relation to the matter. The second defendant was represented by counsel, who contended that the self executing order should not be extended and that the application for a reinstatement of the plaintiffs' counterclaim should be dismissed.

25. The tribunal reserved its decision in relation to the matter.

28. 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.

31. On 4 August the plaintiff sought leave from a Master of the Court to appeal against that determination. That leave was granted on a number of grounds which are set out in the plaintiffs' Notice of Appeal:

"1. In exercising the power conferred by s.126 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal failed to take into account relevant matters, namely: (a) whether granting the relief sought by the appellants would have caused any prejudice or detriment to the respondents which could not be remedied by an appropriate order for costs or damages; (b) that the granting of the relief sought by the appellants would not have caused any prejudice or detriment to the respondents which could not be remedied by an appropriate order for costs and damages. 2. In exercising the power conferred by s.126 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal took into account the following irrelevant matters, namely: (a) that there were costs due to the respondents by the appellants which had not been paid; (b) that there had been delay caused to the respondents in another related proceeding by the delays in the proceeding the subject of the application; (c) as a reason for not granting the application, that the appellants could commence fresh proceedings for the same relief. 3. In exercising the power conferred by s.126 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal took into account as a reason for not granting the application, that the appellants could commence fresh proceedings for the same relief. The Tribunal should have treated that matter as one which as a general rule required the granting of the application. 4. In exercising the power conferred by s.126 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal did not exercise its discretion on the basis of what justice of the case required. 5. In the circumstances the failure of the Tribunal to grant the application was so unreasonable or plainly unjust as to constitute a failure to properly exercise its discretion."

35. The defendants have indicated, in my view very properly so, that they do not propose to resist the plaintiffs' appeal.

38. I content myself by saying that in refusing to extend the self executing order by 24 hours as requested by the plaintiffs, the tribunal was clearly guilty of a denial of natural justice so far as the plaintiffs were concerned. The plaintiffs had complied with the spirit of the tribunal's order of 22 April in that the further and better particulars had been supplied to both the tribunal and the defendants' solicitors on the day stipulated by the tribunal.

41. To take the point that by virtue of the provisions of s.141 of the Act they were deemed to be one day late, was in my view to take a most technical and unrealistic view of the matter. No prejudice whatsoever has been caused to the defendants by the plaintiffs' failure to comply with the order of the tribunal, because, as I have already pointed out, both the tribunal and the defendants' solicitors received the further and better particulars on the last day specified for their filing and delivery. On the other hand, significant prejudice would be caused to the plaintiffs if they are unable to pursue their counterclaim against the defendants.

44. Accordingly, the plaintiffs' appeal from the determination of the tribunal dated 3 June 1999 is allowed.

47. I order that the time fixed by the Direction No. 1 made by the tribunal on 22 April 1999 in matter No. D499-97 in the Domestic Building List be extended to 7 May 1999.

50. I further order that the plaintiffs' counterclaim in that matter be reinstated.

53. I make no order as to the costs of the appeal.