Victorian Civil and Administrative Tribunal|2010-08-10|Before: Mr J

Waddingham v Australian Securities Limited & Ors (Credit) [2010] VCAT 1311 (10 August 2010)

Credit - application to review and revoke certain orders made at hearings at which applicant not present and not represented - application to extent time - application to reinstate proceeding struck out - relevant factors under s120 - meaning of 'striking out' proceeding - relevant considerations - Victorian Civil and Administrative Tribunal Act 1998 , , and

Alice Waddingham as executrix of the estate of Ivan Henry Waddingham (deceased)

Waddingham v Australian Securities Limited & Ors (Credit) [2010] VCAT 1311

Pursuant to s126 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) the time within which the applicant may apply under s120 of that Act is extended to and including 24 March 2010.
Pursuant to s120 of the VCAT Act, the orders made by the tribunal in this proceeding and dated 12 August 2009 and 26 November 2009 are revoked.
Pursuant to ss78 and 130 of the VCAT Act, the order made by the tribunal in this proceeding on 25 August 2009 is set aside, and this proceeding is reinstated.
Alice Waddingham, as executrix of the estate of Ivan Henry Waddingham (deceased) is substituted as the applicant in this proceeding.
This proceeding is listed for a directions hearing at 10.00 am on 19 August 2010 at 55 King Street, Melbourne, with an allocated hearing time of two hours.
The parties' costs are reserved. The parties have liberty to apply on reasonable notice to each other and the tribunal. That liberty includes liberty to the third respondent to apply for its costs thrown away in this proceeding (including costs in relation to its costs application made in September 2009).

This application was filed on 24 March 2010. Initially, it was made under ss120 and 126 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). It asks for certain orders made in this proceeding to be reviewed and revoked under s120. Applications under s120 are subject to a time limit. They must be made within 14 days after the applicant becomes aware of the orders sought to be reviewed.[1] There is no dispute that the applicant received each of these orders within one to two days after they were made. Accordingly, there is an application to extend the time limit under s126 of the VCAT Act.
During the hearing of submissions on this application, an issue arose as to whether the tribunal could review under s120 its order made on 25 August 2009. That order was made in chambers. The applicant submitted that the order could be reviewed under s120. Alternatively, it was submitted that there was an implied power to reinstate a struck out proceeding. The same submissions were made to support the application, whether it proceeded under s120 or as an application for reinstatement.
I have a number of affidavits before me, which exhibit relevant documents. I was also referred to the affidavits of Mr Lodding and Mr Czech, filed earlier in this proceeding. These also exhibit relevant documents. I have written submissions from the second respondent (Barry Kenna). At the hearing, oral submissions were made for the applicant (Mrs Waddingham), the first respondent (ASL), and Barry Kenna. A brief oral submission was made for the third respondent (Varcoes). All of these were represented by lawyers. The fourth respondent (Ivan Waddingham Jnr.), who is not legally represented, appeared at the hearing and simply submitted that this proceeding should be reinstated. It is fair to say that Barry Kenna and Varcoes endorse ASL's submissions and make some additional submissions emphasising certain aspects of ASL's arguments. I deal with the submissions for the first to third respondents in a global way.
I first say something about the law. I then deal with the material before me. Finally, I consider the key issues and submissions and state my conclusions.

Under s120(1) of the VCAT Act, 'a person in respect of whom an order is made' may apply 'for a review of the order if the person did not attend and was not legally represented at the hearing at which the order was made'. The effect of s120(2) and (3) is that such an application must comply with the Victorian Civil and Administrative Tribunal Rules 2008. I have already mentioned the time limit which rule 4.19 of those Rules contains. Under s120(4) the tribunal 'may'

(a) hear and determine the application if it is satisfied that the

applicant had a reasonable excuse for not attending or being

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

The following propositions are clear from the cases. [2] Section 120 is to be construed liberally. Its purpose is to permit review where orders have been made in a person's absence, and where that person was not represented at the hearing at which the orders were made. The tribunal must approach its task in two steps. First, it must ask, did the applicant have a reasonable excuse for not attending or being represented at hearing? Second, it must ask, should the orders under review be revoked or varied? The second step is discretionary. Even if the tribunal finds that there was a reasonable excuse for the applicant's absence from the hearing, it may still decide that the orders under review should not be revoked or varied.
Bradd's case suggests that, where orders are made in chambers, s120 does not apply, because the orders were not made at a 'hearing'. The VCAT Act does not distinguish between a chambers proceeding and a hearing. But it is probable that procedural steps which VCAT can take, and which it can initiate without application, are categories of matters which (if the tribunal considered it appropriate) it could deal with 'in chambers' rather than at a hearing. For present purposes, I treat s120 as not covering orders made 'in chambers'.
Bradd's case also suggests that s120 does not apply to an order striking out a proceeding because, there, the tribunal is not functus officio. I agree with the applicant's submission that the section is not expressly limited in this way. In the light of its purpose, and the need to construe it liberally, I would not limit it by reading into it words that do not appear there. But s120 would not, in my view, cover a strike out order made 'in chambers', because it is not made at a hearing. An application to set aside such an order is properly an application for reinstatement of the proceeding. But, whether the application is framed under s120 or is an application for reinstatement, it is my view that similar considerations apply.
It was submitted for ASL that it is by no means clear that a power can be implied under the VCAT Act to reinstate a struck out proceeding. I do not agree. The effect of striking out a proceeding is to remove it from the list, not to dismiss it absolutely. To put it another way, to strike out a matter leaves a possibility of reinstatement, but the dismissal of a matter leaves no such possibility. When a matter is dismissed, the tribunal is functus officio. When a matter is struck out, it is not. In a number of its sections, the VCAT Act uses the words 'strike out' and 'dismiss'. When it does so, parliament must be taken to have done this in the context of the existing law. Those words have the meanings I have just mentioned. The striking out of a proceeding, because of its nature, implies the power to reinstate the proceeding.[3] To make this conclusion is not to give VCAT some inherent non-statutory jurisdiction. VCAT is a creature of statute and only has statutory functions and powers. This is a power implied by the statute.
When the tribunal comes to the second step of its task under s120, a relevant matter will be whether the case, if reopened, would be without merit. This is part of a more general principle of justice and utility. It would not be fair and would be futile to reopen a manifestly hopeless case.
Relevantly, s126(2) of the VCAT Act allows the tribunal, on the application of a party, and where the rules permit, to extend a time limit fixed by the VCAT Act or the Rules for the doing of any act in a proceeding. It may do this whether or not the time limit has expired. Under s126(4), the tribunal may not extend time if to do so would 'cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages'.[4] The power to extend time is discretionary and must be exercised according to the circumstances of each case. Some of the factors which the tribunal has in the past taken into account are those mentioned in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment.[5] Relevantly, those factors include whether it is fair and equitable to extend time, whether there is an acceptable explanation for the delay, whether the respondent has been prejudiced by the delay and (if the applicant is successful) whether the delay may result in the unsettling of established practices, and the merits of the substantive application.

I now make findings on the material before me about the relevant history of this proceeding. On 30 July 2007, ASL as plaintiff commenced a proceeding in the Supreme Court against Ivan Henry Waddingham (Ivan Waddingham Snr.) to recover possession of Mr Waddingham's home in suburban Melbourne. On 12 October 2007, Ivan Waddingham Snr., by his administrator State Trustees Ltd, applied to VCAT for orders which I later explain. On 20 November 2007, the Supreme Court proceeding was stayed by agreement, pending the completion of the VCAT proceeding.
ASL unsuccessfully applied to have the VCAT proceeding struck out, on the basis that the Consumer Credit (Victoria) Code (the Code), under which Ivan Waddingham Snr. sought relief, did not apply. The Supreme Court refused leave to appeal that decision.
Barry Kenna and Varcoes were then joined as respondents at the applicant's request. Later, at Varcoes request, Ivan Waddingham Jnr. was joined as the fourth respondent. Mediation occurred in late 2008 and was unsuccessful.
On 12 January 2009, Ivan Waddingham Snr. died. Probate of his will was granted to his executrix, Mrs Waddingham. From then, Mrs Waddingham was effectively treated as the applicant in the VCAT proceeding.
On 23 March 2009, the tribunal set a timetable for interlocutory steps which would eventually bring the matter to hearing. Among other things, its directions required Mrs Waddingham and Ivan Waddingham Jnr. to file and serve lists of documents by 15 April 2009. They required that, by 6 May 2009, the applicant was to file and serve medical and other expert evidence on which the applicant intended to rely. Mediation was listed on 20 May 2009.
The applicant did not file and serve a list of documents within the time directed or at all. On 23 April 2009, Mrs Waddingham sent to the tribunal a letter which she signed, saying that she had directed her son (Ivan Waddingham Jnr.) to write the letter as she was unwell, complaining about the expense of the various lawyers who had represented her, explaining that the most recent lawyers had just withdrawn because of conflict of interest, and asking the tribunal to take 'a lead role'. On 24 April 2009, the solicitor for ASL wrote to Mrs Waddingham reminding her of her obligations under the directions of 23 March 2009, and foreshadowing an application to strike the matter out if compliance did not occur.
On 27 April 2009, Ivan Waddingham Jnr. wrote to the tribunal enclosing that letter from ASL's solicitors, and asking the tribunal to look at it. He said that he was now unrepresented and asked if mediation would still take place. He said that his mother was 'very sick'.
By order dated 4 May 2009, the tribunal vacated certain paragraphs of its 23 March directions, including the paragraphs requiring the filing and service by the applicant of a list of documents, and of medical and expert evidence.
Mediation took place on 20 May 2009. It was followed by further discussions between the parties in June and July. Those discussions were ultimately unsuccessful. Throughout the mediation and discussion process, the Consumer Action Law Centre represented Mrs Waddingham, but only for that limited purpose. Mr Hicks of Hicks Oakley Chessell and Williams, who is now Mrs Waddingham's solicitor, also assisted in the preparation of some documents in connection with that mediation and those discussions, but not otherwise at that time. The material before me includes letters from that solicitor dated 3 and 14 July 2009 respectively, advising the solicitor for ASL that he (Mr Hicks) did not have further instructions from Mrs Waddingham to act.
On 27 July 2009, Ivan Waddingham Jnr. and Mrs Waddingham again signed a letter which they sent to VCAT. That letter was clearly written by, and I am satisfied was composed by, Ivan Waddingham Jnr. It begins 'I write to you on behalf of my mother and myself'. It states that 'we' would not be represented at the hearing listed for October 2009 and 'Alice Waddingham and myself will not be in attendance'. It then complains about the number of different legal representatives, the withdrawal of some of those representatives because of conflict of interest, and their cost. It states that 'mother and myself have run out of money' and cannot afford a lawyer. Ivan Waddingham Jnr. states that he does not have the 'intellect or ability' to run the case on his own, and asks the tribunal for clarification of its directions about affidavits and witness statements.
On 29 July 2009, the tribunal listed the matter for a directions hearing to be held on 11 August 2009 (the 11 August directions hearing). On 30 July 2009, Ivan Waddingham Jnr. and Alice Waddingham again signed a letter to VCAT. I am satisfied that that letter was written and composed by Ivan Waddingham. It states that 'my mother and my position is that it is impossible for us to represent ourselves' and then 'we have given great thought to attending the directions hearing in August 2009 and both feel it would be not in our best interests because of no legal representation'. Mrs Waddingham and Ivan Waddingham Jnr. did not attend the 11 August directions hearing. All the other parties were represented at that hearing.
Following that hearing, the tribunal made orders dated 12 August 2009 (the 12 August orders). It directed that, by 20 August 2009, Mrs Waddingham must advise the tribunal and the other parties whether or not she wished to continue the application. If she did not do this within the set time or advised that she did not wish to continue the application, the proceeding was struck out. If she advised that she did wish to continue the proceeding, the directions set a timetable which was to lead to the hearing.
No communication from Mrs Waddingham was received by the tribunal by 20 August 2009. On 25 August 2009, the tribunal (after reciting the effect of the 12 August orders and that no communication had been received from Mrs Waddingham within the set time) struck out the proceeding (the 25 August orders).
A letter dated 3 September 2009 signed by Ivan Waddingham Jnr. and Mrs Waddingham was then received by the tribunal. In an affidavit made on the current application, Mrs Waddingham states that she said in this letter that she had been unwell and had therefore missed the 20 August deadline. The tribunal had returned the letter without reading it because (on a very preliminary examination) it appeared to contain without prejudice material. That letter is not in evidence, and I give no weight to that part of Mrs Waddingham's affidavit that refers to it.
In September 2009, Varcoes applied for costs against the applicant. It made submissions on that application in October 2009. The application was heard and determined in November 2009. By orders dated 26 November 2009, Varcoes was awarded costs for the period from 23 April 2009 onwards (the 26 November orders). Mrs Waddingham did not attend and was not represented at the hearing at which those orders were made. It is fair to say that this costs application follows from the striking out of the proceeding. The submissions on it refer to the 12 August and 25 August orders.
On 7 October 2009, the tribunal's registry (at my direction) wrote to Mrs Waddingham explaining that, if she wished to apply for the matter to be reviewed and to rely on a medical condition which prevented her from attending the hearing, she would need to provide medical evidence of that condition to the tribunal.
In October 2009, ASL revived its Supreme Court proceeding against Mrs Waddingham. Mrs Waddingham as executrix of the estate of Ivan Waddingham, deceased, was substituted as the defendant. ASL applied for summary judgment. A directions hearing was held in relation to the matter on 4 November 2009. Counsel represented Mrs Waddingham at that hearing. On 11 December 2009, Mrs Waddingham's current solicitors began to act for her.
The application for summary judgment was unsuccessful. Associate Justice Daly gave the defendant leave to file an amended defence. That defence was filed in February 2010. It gave notice that application would be made to VCAT to set aside the 12 August, 25 August and 26 November orders.
In its reply to the amended defence, ASL claims that the Code does not apply to the loan contract and mortgage, because it was not wholly or predominately for personal, domestic or household purposes. It has now issued a notice to admit, which is designed to bring on for preliminary determination the issue of the application of the Code. The Supreme Court has adjourned its directions hearing to 25 August 2010, pending the determination of this application. In adjourning that directions hearing, the court noted that (according to ASL) the resolution of this matter may or may not bring the Supreme Court proceeding to an end, and that there should be a shortened timetable in the court if the Supreme Court matter proceeds after any final hearing at VCAT.
Mrs Waddingham has sworn an affidavit in this application in which she says that she did not attend the 11 August directions hearing because of lack of legal representation, because she was unwell, because she was inexpert in commercial and legal affairs, because she had limited education (having finished at year 9 and aged 14) and because she did not know what to do. She explained that she was unwell because of vertigo - a condition which had led to her hospitalisation in 2008. On this occasion, she suffered from vertigo for about two weeks, was unable to get out of bed or to stand without assistance, and suffered vomiting and diarrhoea. There is no suggestion that she sought or required medical assistance, or saw a doctor for this condition in August 2009. Mrs Waddingham does not say in her affidavit that she could not have signed a short letter, perhaps written by one of her children at her direction, to the effect that she wished to continue the VCAT proceeding.

In brief, the claims of Ivan Waddingham Snr. (and now his executrix on behalf of his estate) are these. The loan contract and mortgage with ASL should be reopened and set aside as an unjust transaction under ss70 and 71 of the Code. ASL knew or ought to have known at the time they were entered into that Ivan Waddingham Snr. was aged 93, was suffering from Alzheimer's or dementia, that his sole income was the aged pension (which was insufficient to pay the interest under the loan) and that his sole asset (which was security for the loan) was his home. It is claimed that ASL also knew or ought to have known that Ivan Waddingham Snr. was effectively dependent on Ivan Waddingham Jnr. to make the loan payments and that, if there was default, he would lose his home. It knew or ought to have known that the loan was solely for the benefit of Ivan Waddingham Jnr..
Mrs Waddingham's affidavit exhibits a chain of emails dated 23 October 2004 relating to the loan eventually entered into between ASL and Ivan Waddingham Snr. in November 2004. The emails are between a finance broker (presumably acting for Mr Waddingham) and an officer or a solicitor of ASL. This chain of emails raises what is said to be advice given to Ivan Waddingham Snr. not to proceed with the loan, his advanced age and 'medical condition', the possibility of a loan between Ivan Waddingham Snr. and Ivan Waddingham Jnr., the need for Ivan Waddingham Snr. to get financial advice as to his son's ability to make payments to his father so that the father could know that he had funds to service the loan.
It might be said that the weakest part of this claim concerns Ivan Waddingham Snr.'s alleged Alzheimer's / dementia in November 2004 when the loan was entered into. There is no contemporaneous medical evidence of this condition. Mrs Waddingham in her affidavit says that Ivan Waddingham Snr. was sometimes forgetful and did not make sense in 2003 and 2004, but that no medical advice or opinion was sought about this. As I have said, the chain of emails in October 2004 mentions Mr Waddingham's 'medical condition'. A certificate given by Ivan Waddingham Snr's then treating general practitioner in August 2007 (in support of the application for an administrator) states that he was then suffering from Alzheimer's / dementia and that the earliest medical record of that condition was in June 2006, but that his family states that he suffered from this condition for some three years. But, given the reference to a 'medical condition' in the contemporaneous chain of emails, it is my view that this and the other issues I have just mentioned are not so without merit that they should not go to hearing.
The claims against Kenna and Varcoes relate to the provision by Kenna of a solicitor's certificate in respect of the loan to be entered into by Ivan Waddingham Snr., and the provision by Varcoes of a financial advice certificate in similar circumstances. The application claims that certain statements in those certificates were false, that those advisors were not independent as was stated in the certificates but had acted or did act for Ivan Waddingham Jnr., and that Ivan Waddingham Jnr. was present with Ivan Waddingham Snr. at the interviews with Kenna and Varcoes. The claims are that Kenna and Varcoes owed various duties to Ivan Waddingham Snr. and breached them. Examples of these duties are the duty not to act if the advisor was not independent, the duty not to advise if there was doubt as to Ivan Waddingham Snr's capacity to understand the advice, and the duty not to make a false certificate. I am satisfied that these claims are not so unmeritorious that they should not go to a hearing.
I should add that I do not accept the respondents' submissions that the Alzheimer's / dementia issue in relation to Ivan Waddingham Snr. is the main plank of the claims. The other issues I have earlier mentioned are equally important.

In my view, s120 applies to the 12 August and 26 November orders. I think it doubtful that the section applies to the 25 August in chambers order. I treat this as an application to reinstate the proceeding and set aside that order. There is an implied power under the VCAT Act to reinstate a struck out proceeding. ASL submitted that the proceeding had been struck out under s76 of the VCAT Act for want of prosecution. In my view, it was struck out under s78 of that Act because (as the order recited) the applicant had not communicated within the time set by its 12 August order. Section 78 applies where a party's conduct unnecessarily disadvantages another party. The section gives examples of that conduct, including failure to comply with a direction without reasonable excuse.
If this approach is wrong, there is an alternative basis on which I can consider whether or not to set the 25 August order aside. That order follows from the 12 August order. If the 12 August order is revoked, then, to give proper effect to that revocation, the 25 August order must also be set aside. Section 130 of the VCAT Act gives power to make orders giving effect to other orders of the tribunal. It would empower this.

Should there be an extension of time to make the application under s120?

In my view there should. The application is important. It is by a person who was absent and unrepresented when orders were made effectively striking out claims which I am satisfied were not unmeritorious. The delay between applying to have the orders set aside and for an extension of time to make that application and the expiry of the 14 day time limit from when Mrs Waddingham would have become aware of the orders is not, in my view, inordinate or unreasonable. The 12 August order was made some seven months before those applications were made. The 26 November order was made some four months before those applications were made. During most of that period, Mrs Waddingham was unrepresented. I do not accept the respondents' submission that she could have obtained representation during that period but chose not to do so. It is clear from her affidavit that previous legal representation had been sporadic, and that a number of her legal representatives had withdrawn because of conflict of interest, and that she found difficulty in affording representation.
While counsel acted for her in the Supreme Court proceeding in November 2009, it seems that ongoing legal representation was only obtained by Mrs Waddingham in December 2009. At that time, the issue that had to be dealt with immediately was the application for summary judgment in the Supreme Court. After that issue had been dealt with in late December 2009, her legal representatives then had to understand and prepare this application which was then made in March 2010. In the meantime, Mrs Waddingham's solicitor still had to prepare and file documents in the Supreme Court case.
Would the extension of time cause prejudice which cannot be remedied by an appropriate order for costs or damages? I first look at prejudice, and then whether an order for costs can remedy that prejudice.
ASL submits that the issues between it and the estate of Ivan Waddingham Snr. are now effectively before the Supreme Court and should be dealt with there. The Supreme Court proceeding has been delayed because of the VCAT proceeding, and has now been revived after that proceeding was struck out. That Supreme Court proceeding should continue without further delay. Kenna submits that this proceeding has caused him (a sole practitioner) inconvenience and its prolonging would cause more inconvenience.
I must look at prejudice caused by the requested extension of time. Delay in the Supreme Court proceeding or inconvenience caused by the commencement of the VCAT proceeding is not, in my view, a relevant factor. I am not satisfied that the granting of an extension of time would cause prejudice so significant that the extension ought be refused. The Supreme Court proceeding is not yet at the stage of trial. The VCAT proceeding is very close to hearing. The timetable set in the 12 August orders does not require more discovery, but only witness statements from the parties. It then sets a hearing date. The VCAT hearing should logically precede any trial in the Supreme Court. If the Code is found to apply, and VCAT reopened the transaction that led to the loan and mortgage, it might set aside or revise or alter that loan or mortgage. This would alter the fabric of rights of the parties in the Supreme Court proceeding.
Could any prejudice caused by the extension of time be remedied by an appropriate order for costs? The respondents submit that it could not, because Mrs Waddingham cannot afford to pay costs. It was submitted for Mrs Waddingham that, while she may be unable to pay costs out of her income, there is no evidence that she does not retain some equity in her home. She could use this to obtain money with which to pay any costs order. I agree with this submission. I extend time under s126 of the VCAT Act to and including the date on which this application was made.

Was there a reasonable excuse for Mrs Waddingham not attending or being represented at the hearings at which the 12 August and 26 November orders were made?

Under s120, the question is not whether there was a reasonable excuse for Mrs Waddingham to have failed to write to the tribunal as the 12 August directions required, but whether there was a reasonable excuse why she did not attend or was not represented at the 11 August directions hearing. In my view, there was such a reasonable excuse when the reasons given by Mrs Waddingham in her affidavit for non-attendance and non-representation at that hearing are looked at in combination. Any of those reasons alone may not have constituted a reasonable excuse, but in combination they are cumulative. I have set out those reasons earlier.
The respondents submit that the 30 July 2009 letter signed by Mrs Waddingham and Ivan Waddingham Jnr. indicates that, before she became ill, she had made a deliberate decision not to attend the directions hearing. They submit that I should give more weight to this letter in determining why she did not attend, than to her affidavit. I do not agree. I have no reason to doubt the truth of what she deposes to in her affidavit. The 30 July letter mentions the lack of legal representation and the difficulty in affording it. This reason is also mentioned in her affidavit. But the 30 July letter (and other letters written to the tribunal and signed by Mrs Waddingham) raises another concern which I consider relevant. Those letters are, in my view, clearly composed and written by Ivan Waddingham Jnr., although signed both by him and Mrs Waddingham. I do not accept the respondents' submissions that the interests of Mrs Waddingham and Ivan Waddingham Jnr. converge. I agree with the submission for the applicant that they in fact diverge. Ivan Waddingham Jnr. is not a co-applicant, but a respondent in this case. It may be in his interests that this case not proceed, because (as the whole of this proceeding was struck out) Varcoes's case against him would not proceed. It is not in Mrs Waddingham's interests that the case does not proceed because there would be then no possibility of granting relief under the Code by way of setting aside or revising the loan contract, and because the Supreme Court proceeding would then go ahead, under which she runs an imminent risk of losing her home. Ivan Waddingham Jnr. clearly cannot represent Mrs Waddingham's interests. I consider it probable that he influenced Mrs Waddingham in her decision not to attend the directions hearing of 11 August.
Taking all of this into account, I am satisfied that Mrs Waddingham had a reasonable excuse for not attending or being represented at the 11 August directions hearing.

The parties' submissions covered two issues. They were whether the applicant's claims in the VCAT proceeding were so unmeritorious that they should not go to hearing, and Mrs Waddingham's conduct.
As to the merits issue, I have already summarised the claims and stated my view that they are not so unmeritorious that they should not be heard.
I now come to the conduct issue. According to the respondents, there is nothing in the material before me to indicate that, by 20 August 2009, Mrs Waddingham could not have signed a six-word letter (which one of her children could have written) stating 'I wish my case to continue'. The tribunal had provided a very simple means for her to indicate that she wished to continue her case, and she chose not to do so. She cannot now seek to revive that case. For Mrs Waddingham, it is submitted that I should accept what she says in her affidavit were the reasons for not writing that letter. She says that they were the same reasons that she did not attend and was not represented at the 11 August directions hearing.
I agree with the submissions for Mrs Waddingham, and for the same reasons which I gave in considering the reasonable excuse issue. My earlier comments about the divergence of interest between Ivan Waddingham Jnr and Mrs Waddingham are relevant here. I am satisfied that, under s120 of the VCAT Act, the 12 August orders should be revoked. The 25 August orders are no more than confirmation that the strike out provision in the 12 August order has taken effect. That order, too, should be set aside and the proceeding reinstated.
None of the material before me and none of the submissions dealt with why Mrs Waddingham did not attend the hearing which led to the 26 November order. There is no evidence that she was ill at that time, but there is evidence that at that time she still did not have ongoing legal representation. There is nothing to indicate that Ivan Waddingham Jnr's probable influence over her did not continue. Her lack of education or experience in legal or commercial matters is ongoing. Moreover, the 26 November order followed from an application for costs which in turn followed (and was based on) the striking out of the proceeding. In these circumstances, I am satisfied that there was a reasonable excuse for non-attendance and non-representation at the hearing, and that the 26 November orders should be revoked under s120. Varcoes continues to have liberty to apply for costs thrown away as if that order had never been made.

The proceeding is reinstated. The matter has been listed for a directions hearing. At that directions hearing, I will consider the respondents' submission that I should stay this reinstated proceeding until (at least) the Supreme Court has determined the question of whether the Code applies.

[2] For example see Alesci v Salisbury [2002] VCAT 475; Avonwood Homes Pty Ltd (in liq.) v Milodanovic [2005] VCAT 1297; Tomasevic v State of Victoria [2005] VCAT 609; Bradd v State Revenue Office [2006] VCAT 867

[3] As to the use of the words 'strike out' and 'dismiss' see ss75, 76 and 78; as to the difference between striking out and dismissal, see for example Russo v Transport Accident Commission [2005] VCAT 24; Sidalls v Housing Guarantee Fund Ltd {2004] VCAT 701

[4] Under rule 4.20 of the Victorian Civil and Administrative Tribunal Rules 2008, the powers under s126 can be exercised in any proceeding.

Civil and Administrative Tribunal Act 1998

Civil and Administrative Tribunal Rules 2008

Waddingham v Australian Securities Limited & Ors

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Waddingham v Australian Securities Limited & Ors (Credit) [2010] VCAT 1311 (10 August 2010)

Waddingham v Australian Securities Limited & Ors (Credit) [2010] VCAT 1311 (10 August 2010)

Parties

Legislation Cited (2)

Cases Cited (1)