Victorian Civil and Administrative Tribunal|2004-12-15|Before: Mr J

Russell v Transport Accident Commission [2004] VCAT 2507 (15 December 2004)

General List - application to reinstate applications - no explanation for failure to attend - Victorian Civil and Administrative Tribunal Act 1998 s 120(4)

Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1

I have before me two applications - VCAT Reference No G1214/2003 ("the FOI matter) and VCAT Reference No G1280/2003 ("the TAC matter"). In both applications the Transport Accident Commission is the respondent and the applicant is John Russell. Both applications relate to setting aside orders. I will first of all deal with the FOI proceeding.

2

On 5 March 2004, Deputy President Coghlan made orders as follows :

1. Application for review is dismissed on the basis that the Tribunal does not have jurisdiction to review the decision because there has been no internal review as required by s 51 of the Freedom of Information Act 1982.

3

The order makes it clear that the applicant did not appear and Mr Giacchi appeared on behalf of the respondent. The Deputy President gave written reasons for her decision and I repeat them in full hereunder :

1. Mr Russell the applicant in this proceeding was not present when I made the following orders on 5 March 2004:

1. Application for review is dismissed on the basis that the Tribunal does not have jurisdiction to review the decision because there has been no internal review as required by s 51 of the Freedom of Information Act 1982.

2. Each party is to bear its own costs.

2. Section 51(1) and (2) of the Freedom of Information Act 1982 states:

(1) Where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency (not being a decision on a review under this section), the applicant may, within 28 days after the day on which notice of the decision was given to the applicant in accordance with section 27, apply to the principal officer of the agency for a review of the decision.

(2) A person is not entitled to apply to the Tribunal for review of a decision in relation to which sub-section (1) applies unless -

(a) he has made an application under sub-section (1) in relation to the decision; and

(b) he has been informed of the result of the review or a period of fourteen days has elapsed since the day on which he made that application.

3. Mr Russell was not entitled to apply to the Tribunal for review of the Commission's decision of 8 December 2003 made in response to Mr Russell's substituted request of 31 October 2003 because he had not made an application for internal review of his substituted request as required by the legislation. Moreover, the Commission's response to the substituted request indicates that Mr Russell has been provided with all material that could be located in response to that request.

4. I therefore dismissed the application for review.

4

Mr Russell conceded in his submissions that unless a request was made for internal review, this Tribunal had no jurisdiction. He initially told me from the bar table that his request for internal review was made on 12 March 2004. When I pointed out to him, some time later in his submissions, that that was after the order was made, he then corrected himself and said "No", the request for internal review was made in December. However, a search of the file made by Mr Giacchi, solicitor for the respondent, finds no indication of any application for internal review. In my view, Mr Russell has had adequate time to present any evidence that he wished to put before me hearing this matter. He has indeed sworn a 12 page handwritten affidavit in very recent times. However, in that affidavit he made no mention whatsoever that he had sought an internal review. On that basis, I find that the applicant has not sought internal review of the decision which was made in this matter on 8 December 2003.

5

As the applicant has not sought internal review of that decision, clearly, for the reasons stated by Deputy President Coghlan, this Tribunal has no jurisdiction to determine this matter, therefore it would be of no use whatsoever to set the decision aside pursuant to s 120 because the applicant would have no prospect of success. I refer to Whittlesea City Council v Lewis (967/2000 VCAT) which is referred to in Pizer's Annotated Victorian Act 2nd Ed at p 4305.

6

Further, Mr Russell has failed to give any reason for his non-attendance on 5 March 2004. He did refer to a number of documents. He referred to a letter from Dr Peter Lugg, an orthopaedic surgeon, dated 18 November 2004 which refers to x-rays and bone scans but it does not, in my view, demonstrate why the applicant failed to appear at this Tribunal on 5 March 2004.

7

Mr Russell has also referred to a document of the William Angliss Hospital dated 14 October 2004 which states as follows :

Mr Russell has requested that we give you give a brief report with regard to his physiotherapy attendance and treatment that occurred on the 28th of October, 2003. According to the physiotherapy outpatient notes Mr Russell attended physiotherapy on this date. It was noted subjectively that Mr Russell fell into a drain hitting his right knee and spraining right ankle. He was managed for both the right knee and ankle using electrotherapy modalities, soft tissue work, soft tissue injury education and bracing. I do recall Mr Russell mentioning that he fell into the drain trying to avoid a car but this was not noted in his history.

The physiotherapist from the William Angliss Hospital, Deenilla Benjamin, then goes on to give her telephone number if there are any further queries.

Again, that report does not deal specifically with 5 March 2004, and it could not be said that there was anything contained in that report that would have prevented the applicant from attending on that day.

8

The applicant also referred to a medical report which is on the Tribunal file in the transport accident matter from The Hills Medical Centre signed by Dr Fennessy. That report is dated 11 December 2003 and it reads :

Has just commenced a course of medication for anxiety and depression. He is to be assessed by a consultant psychiatrist on 31 December 2003. He should be excused from attending to any medico- legal matters for the foreseeable future on account of his mental state. (Signed Dr Shane Fennessy).

9

While that medical report refers to things in the future, in my view, if the applicant is to show reason why he did not attend on that day, rather than making broad assertions as to his medical health on that day, he should have had a medical certificate specifically relating to that day.

10

Mr Russell says that there have been medical certificates sent to the Tribunal but they do not appear to be on file. I am unable to throw any light on that save and except that the applicant has known for a very considerable time, many many months, that this application was to be heard this day and he has had plenty of time to provide duplicate medical certificates, if such exist. I will deal with the law in elation to the applicant needing to explain his reason for non-attendance when I deal with the transport accident proceeding.

11

In relation to the freedom of information matter, I note the application which I heard today was originally fixed for hearing on 7 May 2004 and then it was re-listed for hearing on 14 October 2004. The applicant has had ample time to demonstrate with clarity why he could not have attended on those days. Thus, I do not find that the applicant has given me any proper excuse for not attending on 5 March 2004.

12

As a result, I will dismiss the applicant's application for reinstatement of the freedom of information matter.

13

I now turn to the transport accident matter.

14

On 13 February 2004, as a result of an order I made on 24 November 2003, there was a compulsory conference which was conducted by Senior Member Preuss. Mr Russell did not attend on that day. Mr Giacchi attended as solicitor and, as a result of Mr Russell's non-attendance, Ms Preuss made the following orders :

1. The application for review is dismissed pursuant to s.78(2) of the Victorian Civil and Administrative Tribunal Act 1998.

2. The applicant is to pay the respondent's costs of today to be taxed in default of agreement on County Court Scale "A".

3. Otherwise the question of costs of the proceedings generally is reserved.

4. The hearing dates commencing 15 March 2004 are vacated.

15

On 18 February 2004, Mr Russell wrote to the Tribunal seeking reinstatement but again gave no reason for his non-appearance on that day (13 February 2004). He maintains that he sent a medical certificate to the Tribunal prior to that date. However, that medical certificate does not appear to be on the Tribunal file and I take it if there was such a medical certificate, Senior Member Preuss would not have made the orders she made. However, I place no reliance on that last statement.

16

Again, like in the freedom of information proceeding, Mr Russell has clearly known about this application for reinstatement since 18 February 2004. He has had plenty of time to have his case properly prepared. It was listed for hearing on 14 October 2004 and adjourned from that date. He could well have brought duplicate medical certificates. He said he was unwell on that day (13 February 2004), but has presented no evidence to the Tribunal as to why he was unwell or why he did not attend, apart from stating from the bar table that he did not attend. I refer to the medical material previously mentioned in regard to the freedom of information proceeding and again note that that material does not explain why the applicant did not attend the Tribunal on 13 February 2004.

17

Again, I note that the applicant's affidavit of some 12 pages which was sworn recently and given to me this morning does not give any reason for the applicant's non-attendance before Senior Member Preuss. One would have thought that if he intended to use his medical reasons for non-attendance, that would have been something that he would have stated in that affidavit, but it is totally silent on this matter.

18

When dealing with a question of reinstatement, one has to be very liberal indeed, and interpret s 120 in a very liberal manner. I refer to Waugh v Australian Broadcasting Corporation (1080/2000 VCAT) which is also referred to in Pizer's Annotated VCAT Act at para 4300. In that case, VCAT observed in relation to s 120 as follows :

The section operates for the benefit of a party who has not been represented at or has not appeared at a hearing. Taking into account the scheme of objectives of the VCAT Act, the section should be construed liberally. The section applies not only to hearing in person but to maters heard on the papers under section 100(2). In the latter situation section 120 will apply if the applicant satisfies the Tribunal that there is a reasonable excuse for the applicant not participating in the proceedings or determining the proceedings on the papers.

19

I will adopt the liberal interpretation that is referred to above. However, I do note that s 120(4) makes it mandatory that a reasonable excuse for not attending is provided. That section states as follows :

(a) 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

(b) if it thinks fit, order that the order be revoked or varied.

20

I read those words to be mandatory, therefore in order to revoke or vary the order of Senior Member Preuss, I must be satisfied that the applicant has a reasonable excuse for not attending on that day (13 February 2004). The applicant has had many months to prepare for his reasons for his non-attendance on that day and he has had ample opportunity today to give those reasons. He has failed to state, to my satisfaction, any reasonable excuse for not attending before Senior Member Preuss on 13 February 2004. In those circumstances, in my view, the application to reinstate the transport accident proceeding should be dismissed. Therefore, in both proceedings today, the application for reinstatement will be dismissed.

Russell v Transport Accident Commission [2004] VCAT 2507

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Russell v Transport Accident Commission [2004] VCAT 2507 (15 December 2004)

Parties