Victorian Civil and Administrative Tribunal|2003-09-04

Taxis R Us Pty Ltd v Concord Gem Pty Ltd [2003] VCAT 1165 (4 September 2003)

The application for review is granted and the order made on 16 June 2003 is set aside. The full re-hearing of this Application shall be listed as soon as practicable and the Applicant for review shall pay the costs of the Applicant to the original proceedings in the amount to be assessed by the Tribunal at the full re-hearing of this matter.

The Tribunal notes that no application was made by Concord Gem Pty Ltd regarding its dismissed claim in C341/2002.

1. On 6 August 2002 I heard an application by Concord Gem Pty Ltd ("Concord") for an order made on 16 June 2003 by the Tribunal in C324/2003 to be set aside. That order notes that Concord, which was the Respondent in that matter and is the Applicant for Review in this proceeding, did not appear on 16 June 2003. The Applicant in the original proceedings, Taxis R Us Pty Ltd, opposed the Application for Review. Then on 14 August 2003 Taxis R Us Pty Ltd sought written reasons for the orders made on the Application for Review.

2. The orders made on the Application for Review were not final orders. They simply set aside the Tribunal's orders of 16 June 2003 and ordered that the substantive matter be re-heard. In these circumstances, there is in my view no requirement for the Tribunal to provide reasons for its orders. However, in order to re-assure the parties about what matters were taken into account in making the orders, I have decided to provide my reasons in writing, in greater detail than was provided at the hearing.

3. The Applicant for Review was not represented by its director, secretary or other officer as permitted by section 62(3) of the Victorian Civil and Administrative Tribunal Act 1998. Instead, Mr Barnett of counsel sought leave to appear for the Applicant for Review. The Applicant in the original proceedings, Taxis R Us Pty Ltd, appeared in the person of Ms Stramandinoli, an officer of that company. Ms Stramandinoli objected to the grant of leave to Mr Barnett to appear and represent the Applicant for Review. I decided to exercise the Tribunal's discretion and grant Mr Barnett leave to appear for this proceeding only, so that the Application for Review could be dealt with as fairly as possible. I noted that the relevant statutory declaration and an affidavit supporting the Application for Review had been filed already.

4. Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") provides as follows:

"(1) A person in respect of whom an order is made may 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.

(2) An application under sub-section (1) is to be made in accordance with, and within the time limits specified by, the rules.

(3) The rules may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal.

(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 ft, order that the order be revoked or varied."

5. No witness appeared for Concord. Its Application for Review was supported by a statutory declaration of 1 July 2003 by Mr Ryan of Kenyons Lawyers, by an affidavit of the same Mr Ryan dated 5 August 2003 and by a further affidavit of the same date by the same person designated a supplementary affidavit in support of review.

6. The application for Concord was made by its solicitors who provided the evidence. However, it was clear that: Concord Gem Pty Ltd is a person in respect of whom an order was made; that it did not appear and was not represented at the hearing at which the order was made; and that it applied for a review of the order.

7. The application appeared to have been made on 1 July 2003. There is a statutory declaration of that date on the file, sworn by Shaun Joseph Ryan, of Kenyons the solicitors for the Applicant for Review. I noted that the date of hearing at which the order was made was 16 June 2003 and that the Registry recorded the original order having been posted on 20 June 2003. It is therefore clear that the application by the Applicant for Review was made within 14 days after the Applicant for Review became aware of the order, as required by Rule 4.18(1) of the Victorian Civil and Administrative Tribunal Rules 1998.

8. Subsection 4 of section 120 of the Act sets out the criteria for the Tribunal to consider in deciding to hear and determine such an application and order that the order under review be revoked or varied. The Tribunal must be satisfied that the Applicant had a reasonable excuse for not attending or being represented at the hearing.

9. I noted that the notice of hearing for the hearing of 16 June 2003 appeared from the file to have been sent out by the Tribunal on 19 May 2003. I noted that the first affidavit of Mr Ryan dated 5 August 2003 said at paragraph 15 and 16

"15. I also confirm that a notice of hearing for my client's application and the Applicant's counter claim was listed for the 16th June 2003, however the notice was forwarded directly to our client.

16. Our client by facsimile transmission faxed the notice of hearing directly to our office on the 21st May 2003 however the notice was pinned directly on the file and not drawn to my attention and as a result I was not aware of the hearing date.

17. I assumed that the Victorian Civil and Administrative Tribunal had adjourned the proceedings sine die pending resolution of the Magistrate's Court complaint given that complaint related to the same claim in the Victorian Civil and Administrative Tribunal.

10. This was consistent with the Statutory Declaration on file, also from Mr Ryan. While the Applicant for Review did not itself proffer its excuse, it was clear from the statutory declaration and affidavit that the excuse proffered was that the Applicant for Review relied on its solicitors to deal with the notice of hearing. The solicitors could have dealt with the notice in a number of ways - by seeking that the hearing be adjourned, by informing Concord that it should attend or by attending on its behalf or taking some other action. To do nothing was an error on the solicitors' part, given that Concord seemed to rely on them to act.

11. The Applicant in the original proceedings, Taxis R Us Pty Ltd, made vigorous representations that I should not accept the evidence in Mr Ryan's affidavit. I was not unsympathetic to Ms Stramandinoli's frustration. It does appear from the file that the resolution of this matter has taken an unnecessarily long time. However, while Ms Stramandinoli made it clear she did not believe or accept the excuse proffered by the Applicant for Review, she was not in a position to provide evidence to contradict the statutory declaration and affidavit. She did not have the opportunity to cross- examine anyone from Concord about whether the company had relied on its solicitors to deal with the Notice of Hearing nor to cross-examine the person who provided evidence by affidavit. However, I formed the view that any prejudice to Taxis R Us Pty Ltd in setting aside the order of 16 June 2003 on the basis of the evidence before me and listing the substantive matter for re-hearing could be dealt with by an appropriate order as to costs

12. Administrative errors are a common enough occurrence. They occur in solicitors' offices as in many other places. I found it credible that one had occurred in this case. Therefore I accepted Mr Ryan's evidence. On that basis, I found that the Respondent had relied on its solicitors to arrange matters to do with the original application and that they had not done so.

13. Ms Stramandinoli had submitted that the assumption in paragraph 17 of the affidavit could not possibly be correct as the matter before the Magistrates Court had been quite a separate one. I made no finding about that assumption, as there was not sufficient evidence before me.

14. I found that the solicitors made the error of taking no action. I was satisfied that this was a reasonable excuse for the Applicant for Review not attending or being represented at the hearing on 16 June 2003.

15. In my view it was then appropriate to set aside the order made on 16 June 2003 and list the full rehearing of the application as soon as practicable.

16. I noted also that the Applicant for Review made no application regarding its dismissed claim in C3481/2002 to which this matter appears to have been a counter claim, so made no order about that original application.

17. Accordingly I ordered that the order of 16 June 2003 be set aside, that the full re-hearing of the original application be listed for hearing as soon as possible and that the Applicant for Review pay the costs of the Applicant in the original proceeding, in the amount to be assessed by the Tribunal at the full re-hearing.

Taxis R Us Pty Ltd v Concord Gem Pty Ltd [2003] VCAT 1165

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Decision date

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Judgment (29 paragraphs)

Taxis R Us Pty Ltd v Concord Gem Pty Ltd [2003] VCAT 1165 (4 September 2003)

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