3 I direct that the proceeding be re-listed for a mediation as soon as possible, at a date suitable to the parties, particularly the applicant.

4 I direct that a date be fixed for the hearing, with half a day being set aside, so that the matter will proceed expeditiously in the event that the mediation is unsuccessful.

1 On 2 June 2004 Joseph Raspa applied to the tribunal for the review of a decision of the Port Phillip City Council ("the council") to refuse to grant a permit for an extension to a dwelling. Mr Raspa served a copy of the application for review upon an objector, Mr T Kyrkilis, who was the occupier of a nearby property. On 10 June 2004 Mr Kyrkilis filed a notice with the tribunal stating that he wished to be heard in relation to the application and wished to rely on two grounds, the main one relating to overlooking.

2 The tribunal made a decision to refer the application to mediation under section 88 of the Victorian Civil and Administrative Tribunal Act 1998. Letters were prepared informing the parties that the mediation was scheduled for 2:15pm on 4 August 2004. There was placed upon the tribunal file a copy of the letter to Mr Raspa, a copy of the letter to the council and two copies of the letter to Mr Kyrkilis.

3 At 2:15pm on 4 August 2004 a mediation commenced before Member Cimino of the tribunal. Mr Raspa and the council were both represented. Mr Kyrkilis did not attend. Mr Cimino examined the tribunal file and observed a copy of a letter to Mr Kyrkilis notifying him of the time and place of the mediation. Mr Cimino inferred that Mr Kyrkilis had been sent the notice. Having regard to the content of the letter, he also inferred that Mr Kyrkilis had been advised that a failure to attend the mediation could result in him being struck out as a party. In the circumstances, Mr Cimino (effectively) decided to order that Mr Kyrkilis be struck out of the proceeding and to determine the proceeding in favour of the applicant. The actual order made followed discussions between the council and the applicant, designed to minimise the overlooking of nearby properties. However it is possible that the compromises made as a result of these discussions may not have been sufficient to satisfy Mr Kyrkilis.

4 In making his decisions, Mr Cimino acted pursuant to sections 78 and 93 of the Act. Section 78 enables a respondent to be struck out of a proceeding. Section 93 provides that if the parties agree to settle a proceeding at any time, the tribunal may make any orders necessary to give effect to the settlement. The power to make such an order is exercisable by any member including, if the settlement is achieved through mediation conducted by a member, that member.

5 On 16 August 2004 Mr Kyrkilis wrote to the tribunal expressing concern as to the outcome of the application. In his letter he stated that he was not informed of the mediation by letter or by telephone. In his letter he stated that he would "swear on my father's grave that we didn't get any letters from VCAT to let me know about this mediation on August 4 2004". As a result of receiving the letter from Mr Kyrkilis the tribunal listed the matter for its practice day on 10 September 2004.

6 On 3 September 2004 the applicant, Mr Raspa, sent an email to the tribunal expressing the view that, from his point of view, the matter was now closed. He stated that there was no longer an overlooking issue and therefore, "with all due respect", he would not be attending the mediation hearing on 10 September 2004.

7 I have considered the statements made in Mr Kyrkilis' letter received 16 August 2004. I have also noted that there are two copies of a letter on the tribunal's file informing him of the mediation. I am also aware of the practice of the tribunal to include one copy of a letter it forwards to a party on the tribunal file. I draw the inference that, on the balance of probabilities, the letter intended to be sent to Mr Kyrkilis was not sent to him, but was instead, by error, placed on the tribunal file. This is a case where there is an independent basis for verifying the claim made by Mr Kyrkilis that he did not receive the letter notifying him of the mediation. I am confident that if Mr Cimino had known of the true position he would have exercised his powers differently.

8 The error in the service of notice in this case is unfortunate. On behalf of the tribunal, I must apologise to the parties for this occurring. But it has occurred; and I must deal with it in an appropriate manner.

9 The council informed me at the hearing that it had not issued the permit which Member Cimino had granted on 5 August 2004. Thus it is not necessary for the permit to be cancelled in order to put matters back to the stage they were at at the time the mediation was listed.

10 The tribunal has an obligation to act fairly in all proceedings. Although Mr Cimino's decision was given in good faith, a review of the evidence, including the further evidence constituted by Mr Kyrkilis' letter, requires a different conclusion than the one he based his decision upon to strike out Mr Kyrkilis as a party to the proceeding. Fairness requires that Mr Cimino's decision be reversed. I have no doubt the result will inconvenience the applicant. But I am sure he will reflect upon the matter and conclude that if the events had happened in reverse (that is, no notice had been given to Mr Raspa) and the application for review had been struck out, he would have had a legitimate demand to have the matter reconsidered.

11 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. 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.

12 I am satisfied that Mr Kyrkilis did have a reasonable excuse for not attending the hearing, namely that he was not notified of the hearing. I am also satisfied that it is appropriate that the order made by Mr Cimino on 5 August 2004 be revoked and that the matter be remitted to a further mediation and, subsequently, a hearing. It is also appropriate that the fresh mediation and hearing be held promptly and, if at all possible, at a time which is convenient to the parties, especially Mr Raspa.

13 A legal issue which arises is whether section 120 is available in the context of the order made by Member Cimino. This is because section 120 is available when a person does not appear at "the hearing at which the order was made". The word "hearing" is not defined in the VCAT Act, although there is a Division of the Act (Division 7 of Part 4) which is devoted to "Hearings". By contrast there is another Division (Division 5 of Part 4) which is devoted to "Compulsory conferences, mediation and settlement". In Al-Hakim v Monash University (Mackenzie DP, 30 July 1999) the tribunal found that the word "hearing", in the context of a provision in the Equal Opportunity Act the equivalent of section 92 of the Act, should be read broadly to include any hearing before the tribunal in relation to a matter. Notwithstanding that the expression "a hearing" is a broad one, I am not satisfied that it extends to an order made by the tribunal under section 78(1)(g) (in relation to a mediation) or under section 93 where settlement is achieved through mediation. Whatever the scope of the word "hearing", it does not extend to the use of these powers in relation to a mediation.

14 However, I am satisfied that the decision made by Mr Cimino cannot stand for the reasons set out above. Hence I regard this as an appropriate case to make a declaration to that effect, pursuant to section 124 of the VCAT Act. I also regard this as an appropriate case to grant an injunction against the responsible authority restraining it from issuing the permit purportedly granted by Mr Cimino.

15 The declaratory power and the injunction power of the tribunal must be exercised in a proceeding. There is a proceeding before the tribunal, namely an application that could properly be regarded as an application pursuant to section 120 of the Act. Further, as the effect of Mr Cimino's order was to strike out Mr Kyrkilis as a party, rather than dismiss his case, for the reasons set out in Jeffrey v Corrections Victoria [2004] VCAT 1211, I regard the tribunal's declaratory and injunction powers as enlivened in the present circumstances on the basis that the substantive proceeding is still extant.