Tsiavis v Transport Accident Commission [1999] VSC 471

9. On 5 December 1995 the plaintiff was involved in a transport accident as a consequence of which he sustained certain injuries.

12. On 4 February 1996 the plaintiff lodged a claim for compensation with the Transport Accident Commission (TAC).

15. TAC then made weekly payments to the plaintiff pursuant to s.44 of the Transport Accident Act 1986 (the Act) covering the period from 13 December 1995 to 19 January 1997.

18. On 24 January 1997 and pursuant to the provisions of s.46A of the Act, TAC wrote to the solicitors for the plaintiff advising them that unless the plaintiff provided certain information as to his medical condition to it by 5 June 1997 the plaintiff should regard TAC's letter as a determination that the plaintiff had a 0% whole person impairment in consequence of the transport accident on 5 December.

21. No such information was supplied by the plaintiff to TAC. However, on 8 July 1997 the plaintiff filed a notice of application for review of the determination of 24 January 1997 with the Administrative Appeals Tribunal of Victoria (the 1997 application).

24. On 22 April 1998 and as a consequence of receiving certain information concerning the plaintiff, TAC wrote a further letter to the plaintiff's solicitors stating that the plaintiff's claim for loss of earnings benefits and loss of earning capacity benefits was denied "as TAC was in possession of information to the effect that the plaintiff had not suffered a loss of earnings or loss of earning capacity since the date of the transport accident on 5 December 1995."

27. The 1997 application came before the Victorian Civil and Administrative Tribunal (VCAT) on 9 March 1999.

30. The plaintiff's counsel made an application for an adjournment of the proceeding that day on the ground that there were witnesses upon whom the plaintiff proposed to rely who were not available to give evidence that day, and that the plaintiff wished to make a further application in respect of TAC's determination of 22 April 1998. The Tribunal acceded to the plaintiff's application and the matter was adjourned to a directions hearing on a date to be fixed.

33. On 13 April 1999 the plaintiff lodged an application for review of the determination of 22 April 1998 with VCAT (the 1998 application).

36. On 19 April 1999 the Tribunal ordered that the 1997 application and the 1998 application be heard together.

39. On 3 May 1999 TAC wrote the following letter to the plaintiff's solicitors:

"Ellis Angelatos & Co DX 477 MELBOURNE Dear Sir/Madam Re: TAC ats Spiro Tsiavis Please find enclosed the Respondent's Statement under Section 49 by way of service. We refer to the above matter in which TAC has considered and affirmed the determination the subject of the Application for Review herein. Will you kindly note the following matters: 1 You will note that at the Directions Hearing held on 19 April 1999 in respect of VCAT Appeal 1997/044516, orders were made reserving the respondent's costs with no order as to the applicant's costs. We advise that the respondent will be seeking from the applicant payment of all costs thrown away not only by reason of the adjournment of the initial impairment appeal but secondly by virtue of your having unnecessarily duplicated proceedings, thereby doubling the amount of paperwork involved. In particular, we note that by way of correspondence dated 1 December 1998 the applicant was offered the opportunity to incorporate into the impairment appeal the determination by the respondent made 22 April 1998 which has now been the subject of a fresh Application for Review. 2. Could you please note that the respondent requires strict compliance with each and every requirement of Practice Direction GEN 3A by the applicant. In particular the respondent requires that, in addition to the financial information which has been provided by the applicant and which is annexed to the respondent's Section 49 statement the following material: (a) The applicant's income tax returns and notices of assessment for the financial years ended 30 June 1993, 30 June 1994, 30 June 1995, 30 June 1996, 30 June 1997 and 30 June 1998. (b) Income tax returns and notices of assessment in respect of "the Ekaterini Tsiavis Family Trust" in respect of the financial years ended 30 June 1993 to 30 June 1998 inclusive including balance sheet and trading profit and loss statements in respect of this trust over this period. (c) All documents, cheques, invoices, accounts or any other materials whatsoever which evidence or reflect sub-contracting work or activity by the applicant for Mokro Pty. Ltd. prior to 30 June 1995. (d) All documents, cheques, invoices, accounts or any other materials whatsoever which evidence or reflect sub-contracting work or activity by the applicant for Mokro Pty. Ltd. prior to 30 June 1996. (e) A fully legible copy of PPS deduction variation certificate No. VK51937A. (f) The applicant's 1994/1995 PPS summary sheet. (g) The applicant's 1995/1996 PPS summary sheet. We look forward to receiving this material at your earliest convenience. Yours faithfully TAC Law Pty Ltd."

43. On 21 May 1999 the applications were listed for a directions hearing before a member of the Tribunal. That day the Tribunal ordered by consent that the plaintiff file and serve a statement incorporating the plaintiff's answers to TAC's request set out in TAC's letter of 3 May 1999 in paragraphs (a) to (g) inclusive. The hearing was then adjourned to 5 July.

46. The plaintiff did not comply with the order of 21 May and on 5 July a further order was made by the Tribunal that the plaintiff provide the information sought by TAC. The matter was then adjourned to 3 August.

49. The plaintiff did not comply with the order of 5 July and on 3 August 1999 the Tribunal made the following further orders in the proceeding:

"1. Pursuant to s.78 Victorian Civil and Administrative Tribunal Act 1998, the applicant has conducted this proceeding in a way that has unnecessarily disadvantaged the respondent in that he has: (a) failed to comply with orders of this Tribunal without reasonable excuse to wit orders made 21 April and 5 July 1999; (b) caused an adjournment. 2. Unless the applicant complies with the orders made by Member Davis on 21 April 1999 on or before 4.00 p.m. on 23 August 1999, these applications will stand dismissed. 3. Adjourn to Directions Hearing 31 August 1999 at 10.00 a.m. 4. Applicant to pay respondent's thrown away costs of this day, such costs to be taxed in default of agreement on County Court Scale 'A'. Payment of such costs to be stayed until final determination of this matter."

53. The self-executing order was made without demur by the solicitors for the plaintiff.

56. Between 3 August 1999 and 31 August there was an exchange of correspondence between the plaintiff's solicitors and TAC concerning the matter, and further material was supplied by the plaintiff's solicitors to TAC.

59. On 31 August the plaintiff's applications came again before the Tribunal. On that occasion the following exchange took place between the presiding member of the Tribunal (Mr. Davis) and the plaintiff's solicitor (Mr. Erhardt):

"The matter was called on before Mr. Davis in Room 1.3. Mr. Davis asked Mr. Erhardt whether there had been compliance with the orders made 3 August 1999, to which Mr. Erhardt replied that there had only been partial compliance. Mr. Davis asked Mr. Erhardt to explain what power the Tribunal had to deal with the Applications for Review further given that he conceded that the previous orders had not been complied with. Mr. Erhardt replied that he had done all that he could to comply with the orders and that the plaintiff had delivered a box of documents to him which he had taken much time to sort through. Mr. Davis stated that in the circumstances before him he had no power other than to make a finding of fact that the orders of 3 August 1999 had not been complied with."

63. The Tribunal then made the following orders in the proceedings:

"1. The order made 3 August 1999 be amended by deleting 'April' from paragraphs 1 and 2 thereof and substituting 'May'. It is noted that the necessity for this amendment was caused by a mistake. 2. The applicant has failed to comply with paragraph 2 of the order of 3 August 1999. 3. The applicant pay to the respondent the costs of the application to be taxed in default of agreement on County Court Scale 'A'. The payment of the costs herein be stayed for 60 days from this day."

67. On 23 September 1999 the plaintiff filed his originating motion in the Court. Whilst his application for leave to appeal in respect of the order of 31 August is within time, his application in respect of the order of 3 August is out of time.

70. On 25 October the originating motion came before a Master of the Court. The Master took the view that he had no power to entertain the plaintiff's application for an extension of time within which to seek leave to appeal and referred the originating motion to the Judge sitting in the Practice Court.

73. In the circumstances I can see no good reason why I should not grant the plaintiff an indulgence in respect of the order of 3 August and extend the time for making application for leave to appeal from that order to 23 September 1999. The omission to make the application within time was due to error on the part of the plaintiff's solicitor, the period of time involved is short, and I can see no prejudice being caused to TAC by granting the extension.

76. When the matter came before the Master the following were the grounds upon which the plaintiff sought to appeal from the orders of 3 August and 31 August:

"1. The said orders were contrary to and wrong in law. 2. The said decisions and orders were against the evidence and against the weight of the evidence. 3. That the learned presiding member misdirected himself and was wrong in law in finding or holding that it was a proper exercise of the Tribunal's discretion to make the said orders."

80. However, when the matter came before me on 8 November the plaintiff sought to add two further grounds which read:

"4. That the said orders were not permitted under Section 78 of the Transport Accident Act 1986 or any other provision of the enabling legislation. 5. That the learned presiding member failed to properly exercise his discretion under Section 78 of the Victorian Civil and Administrative Tribunal Act 1998."

84. If I might deal first with the plaintiff's grounds of appeal.

87. The first point to make about grounds 1 and 3 is that they do not identify any questions of law. Indeed it can be said in the context of this case that they are meaningless.

90. As counsel for TAC pointed out in their written submissions:

"It is a fundamental, indeed jurisdictional requirement, that an applicant for leave to appeal (from a decision of the Tribunal) identify the question or questions of law on which the appeal is proposed to be brought."

94. The reason for that is simply that a party to a proceeding before VCAT can only seek leave to appeal "on a question of law" from an order of the Tribunal. See s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), and the decision of the Court of Appeal of this Court in Department of Premier and Cabinet v. Hulls [1999] U.S.C.A. 117, in particular paras. 9 and 16.

97. Ground 2 which simply states that the decisions and orders were against the evidence and against the weight of the evidence is not a ground of appeal which raises a question of law. See the joint judgment of Young, C.J. and McGarvie, J. in Transport Accident Commission v. Hoffman & Others [1989] VicRp 18; [1989] V.R. 197 at p.199.

100. Ground 4 states that the orders were not permitted under s.78 of the Transport Accident Act or any other provision of the enabling legislation.

103. Section 78 of the Act relates to proceedings before the Transport Accident Commission. The plaintiff's applications were before the Victorian Civil and Administrative Tribunal. Section 78 of the Act or "any other provision of the enabling legislation" has no bearing upon the Tribunal's orders.

106. The final ground relates to the provisions of s.78 of the VCAT Act. That section reads:

"78. Conduct of proceeding causing disadvantage (1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as - (a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or (b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or (c) asking for an adjournment as a result of (a) or (b); or (d) causing an adjournment; or (e) attempting to deceive another party or the Tribunal; or (f) vexatiously conducting the proceeding. (2) If this section applies, the Tribunal may - (a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or (b) if the party causing the disadvantage is not the applicant - (i) determine the proceeding in favour of the applicant and make any appropriate orders; or (ii) order that the party causing the disadvantage be struck out of the proceeding; (c) make an order for costs under section 109. (3) The Tribunal's powers under this section are exercisable by the presiding member."

110. There is no material before me which satisfies me that in making the self-executing order he did on 3 August 1999 and in making the order he did on 31 August the presiding member failed to properly exercise his discretion in the matter.

113. Section 80 of the VCAT Act provides that the Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding. The section reads:

"80. Directions (1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding. (2) The Tribunal's power to give directions is exercisable by any member. (3) The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents."

117. Section 130 of the VCAT Act gives the Tribunal power to impose conditions and make further orders. The section reads:

"130. Power to impose conditions and make further orders (1) A power of the Tribunal to make an order or other decision includes a power to make the order or decision subject to any conditions or further orders that the Tribunal thinks fit. (2) Conditions or further orders may include - (a) an adjournment of the proceeding; (b) an order for costs; (c) a condition or order that a party give notice of the proceeding, order or decision to any person specified by the Tribunal; (d) a condition or order that a person give an undertaking to the Tribunal; (e) a condition or order necessary or desirable to give effect to an order or other decision."

121. TAC first sought the information in question on 3 May 1999. Despite orders made on 21 May and 5 July that he do so, by 3 August the plaintiff had failed to supply the information.

124. On 3 August the plaintiff's solicitor did not oppose the making of the self-executing order. In the circumstances I consider that the Tribunal was quite justified in making the order.

127. On 31 August the Tribunal was satisfied that the plaintiff had not complied with the order of 3 August. That was a finding of fact it was entitled to make and in my opinion it was fully justified in making. Indeed it could be argued that it would have been an erroneous exercise of its discretion if it had declined to make the orders it did on 31 August.

133. In the circumstances I am not satisfied that it is arguable that the Tribunal made any error of law on either 3 August or 31 August and the application for leave to appeal from the orders made by the Tribunal on those dates must fail.

136. I order that the plaintiff's originating motion be dismissed with costs to be taxed including any reserved costs and paid by the plaintiff.