Victorian Civil and Administrative Tribunal|2005-08-01|Before: Stuart Morris J

Tomasevic v State of Victorian (Anti Discrimination) [2005] VCAT 1525 (1 August 2005)

Function of VCAT - Re-opening order on substantive grounds - Discretion to revoke - Whether revocation usurps role of judicial review by Court of Appeal - Vexatious conduct of proceedings - Applicant did not appear and was not represented at hearing - Reasonable excuse for non attendance - Blameless non-attending party - No automatic right for a non-attending party to have order revoked - Application dismissed - Victorian Civil and Administrative Tribunal Act 1998, ss 78, 120

1 The application made pursuant to section 120 of the Victorian Civil and Administrative Tribunal Act 1998, that the order of Judge Dove made on 22 April 2005 be revoked, is dismissed.

1 The tribunal has before it an extraordinary application in an extraordinary case. The applicant, Milan Tomasevic, makes application pursuant to section 120 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"), to have an order of Judge Dove, sitting as a vice president of the tribunal, revoked on the basis that Mr Tomasevic did not appear, and was not represented, at the hearing at which the order was made. This is not in itself extraordinary. What is extraordinary is that the applicant had attended most of the hearing before Judge Dove; his application is based upon the fact that he was not present, or represented, on only the last two days of a 15 day case. As for the extraordinary nature of the case, this has been explained by Judge Dove. It is necessary to set out some relevant facts.

2 On 22 April 2005 Judge Dove dismissed a complaint made by the applicant against the Department of Education, Employment and Training and two of its employees. The history of that complaint is outlined in reasons given by Judge Dove on 22 April 2005. The complaint was dismissed, not in the normal course, but pursuant to section 78 of the Act, a section that allows the tribunal to dismiss a proceeding if it believes an applicant is conducting the proceeding in a way that unnecessarily disadvantages another party. The section specifies that vexatiously conducting a proceeding would amount to such conduct. That is what Judge Dove found had occurred.

3 The application by the respondents that the tribunal dismiss the proceeding pursuant to section 78 of the Act was foreshadowed on Thursday 14 April 2005 and was commenced on the afternoon of Friday 15 April 2005. The applicant was present on both these occasions. The application continued on Monday 18 April 2005. On Friday 22 April 2005 Judge Dove determined the application in the respondents' favour. On the latter two days the applicant did not attend. In effect, he had asked the tribunal to adjourn the proceedings, on the basis that he was unwell. However Judge Dove did not accept that the applicant was genuine and proceeded in his absence, making the order dismissing the proceeding.

4 Mr Tomasevic has affirmed an affidavit stating that he has a history of anxiety and depression and has been seeing a treating psychiatrist. He said that on 16 April 2005 he attended a general practitioner, as his treating psychiatrist was unavailable. The general practitioner was of the view that Mr Tomasevic should not do anything which could cause an increase in his anxious or depressive state, including attending any court hearings. On 18 April 2005 Mr Tomasevic faxed a letter to the tribunal, which included a copy of the medical certificate of the general practitioner. In that letter he indicated that he would not be attending, under medical advice, because he was in great danger of having a relapse of severe anxiety and depression. Later that day Mr Tomasevic attended on his treating psychiatrist. The psychiatrist has identified that the aspect of Mr Tomasevic's life which was creating stress was the VCAT proceeding. He commented:

Unfortunately, he tends to be verbally belligerent when he is stressed and perceives that he is being treated unfairly. I do not believe that he has a psychotic illness, but he is at moderate risk of a relapse of his major depression if he is required to continue attending the VCAT hearing.

5 On 21 April 2005 Mr Tomasevic sent a facsimile to the tribunal complaining that his case had been handled in an unethical and unprofessional manner. In his letter he said:

I therefore now make a formal application for an independent Psychiatric assessment by the Tribunal and if required a further assessment by a VCAT psychiatrist.

I strongly believe that his Honour Judge Dove is throwing accusations around with no facts or evidence.

I am totally sick of the political games, biasness that is continually displayed by Judge Dove. It does not give me any confidence with the respondents legal counsel advises the judge on his rulings.

Please advise date and time for the psychiatric assessment and details of where I have to attend.

6 On 22 April 2005 Mr Tomasevic sent a further facsimile letter to the tribunal in which he requested an adjournment of the hearing. A certificate prepared by his treating psychiatrist, to the effect that Mr Tomasevic was unfit to attend court, was enclosed. In his letter Mr Tomasevic said:

I wish to also advise that neither Judge Dove nor Mr Jacobs are qualified to make assessments on my mental state, I am tired of the repeated suggestion that I am faking my condition. What benefit would I gain by doing so, I want this case to be heard.! [sic]

7 The respondents have placed evidence before me that questions the applicant's mental state on 18 April 2005, in particular. But, for reasons I give, it is unnecessary to dwell on this.

8 In the reasons for his decision to dismiss the case, Judge Dove set out the various matters he relied upon in concluding that the proceeding had been conducted vexatiously by the applicant. The matters he relied upon took place during the hearing up until (and including) Friday 15 April 2005. In the present context it is important to note that Judge Dove also considered whether he should proceed with the hearing on 18 April 2005, notwithstanding Mr Tomasevic's absence. In deciding he should proceed, Judge Dove had the certificate of the general practitioner before him. Judge Dove gave detailed reasons for so proceeding on that day.

9 The hearing held on Friday 22 April 2005 did not involve taking submissions, but was for the purpose of allowing Judge Dove to give his decision in relation to his application pursuant to section 78 of the Act. Hence I would not regard the fact that the applicant did not attend that day as having any particular significance in the context of an application under section 120 of the Act.

10 Section 120 of the Act provides, relevantly:

(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.

(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.

11 The interpretation to be given to section 120 was usefully discussed by Senior Member Walker in Avonwood Homes Pty Ltd v Milodanovic [2005] VCAT 1297 at [26] to [28]. It was also briefly considered by Bongiorno J in Alesci v Salisbury [2002] VSC 475. It seems clear enough that the tribunal's power to make an order pursuant to section 120, that a previous order be revoked or varied, has two elements. First, the tribunal must be satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing. Second, if the tribunal is so satisfied, the tribunal has a discretion as to whether or not the order should be revoked or varied. It may be useful if I say something further about each element.

12 It seems clear enough that "a blameless non-attending defendant"[1] would usually be able to satisfy the first element. The tribunal has an obligation to act fairly and, in the normal course, this would require a party to be notified of the hearing and be given an opportunity to be heard. However what may constitute a "reasonable excuse" (or, for that matter, what would make an applicant "blameless") ought be left to the judgment of the tribunal in a particular case. It is likely to be a question of fact, to be determined by the member concerned. To seek to lay down legal principles that might govern this exercise seems to me to be fraught with difficulty.

13 As for the second element, the discretion as to whether or not to grant an application under section 120 may involve considerations beyond whether the applicant has a reasonable excuse for not attending or being represented at the hearing. In many cases, the tribunal might consider the merits of the case. If it was satisfied that the applicant's case was untenable or hopeless, it could refuse to revoke the earlier order in the exercise of its discretion. The tribunal could choose to hear the evidence that the applicant for the section 120 order intended to rely upon in relation to the merits, and take this into account in making an assessment as to whether to exercise the section 120 power. There may be other factors that influence the discretion. There may be a change of circumstances since the original decision which would make it inappropriate for the order to be revoked: for example, a planning permit may have issued or a party affected by the order may have taken some action. The impact of revoking an order on the other parties to the proceeding - indeed on other persons affected by the order - may be relevant. The important thing to note is that there is no automatic right for a person who does not attend a hearing to have an order made at that hearing revoked. This is so even if the person seeking to have the order revoked is blameless.

14 It needs to be emphasised that an application made pursuant to section 120 of the Act is not, and should not be used as, an appeal against the decision which is sought to be revoked. If the applicant is dissatisfied with a decision of the tribunal, constituted by a judge, there is a right (subject to obtaining leave) to have the decision judicially reviewed by the Court of Appeal. It is important that in an application under section 120 the tribunal does not seek to usurp the proper role of the Court of Appeal.

15 Even if the applicant could satisfy me that he had a "reasonable excuse" for not attending the hearing on 18 April 2005, I would not be prepared to exercise my discretion to order that the order of Judge Dove be revoked. To do so would be to usurp the role of the Court of Appeal, which is charged by the Parliament with the role of determining whether the decision of Judge Dove was legally erroneous. It is clear that Judge Dove considered the same issues that I am now asked to assess: and, in particular, the questions of whether the applicant's non-attendance at the hearing on 18 April 2005 was justified and whether an adjournment should be granted.

16 The applicant claimed that Judge Dove and counsel for the respondents had engaged in "teamwork" to conspire against the applicant and that they had a "hunting plan". In my opinion, if these serious allegations are to be pursued, they must be pursued in an appeal against Judge Dove's decision. This is not the occasion to determine whether there was a breach of natural justice, in the sense that the judge was biased.

17 I should add that, as presently advised, I would not be prepared to exercise my discretion to revoke the order of Judge Dove because it also seems to me, for the reasons that Judge Dove gave, that the applicant has conducted the proceeding in a way which was vexatious.

18 Thus the present application under section 120 of the Act must be dismissed. It is unnecessary that I deal with the question of whether the applicant had a reasonable excuse for not attending the hearing on 18 April 2005. In fact, it is undesirable that I do so as this question has effectively been dealt with by Judge Dove and it is inappropriate that I be called upon to review his decision.

[1] See Alesci v Salisbury [2002] VSC 475 at [6].

Tomasevic v State of Victorian

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Tomasevic v State of Victorian (Anti Discrimination) [2005] VCAT 1525 (1 August 2005)

Parties