Victorian Civil and Administrative Tribunal|2000-05-31

The application is to be made in accordance with the VCAT rules. Rule 4.18 provides that the application must be made within 14 days of the complainant becoming aware of the order. It is not clear from Mr Wahr's application when he became aware of the existence of the 6 August order. He says that it was after he returned to Australia from overseas and he returned in late December 1999.

Having regard to all the circumstances I am prepared under s.126 of the VCAT Act to extend the 14 day time limit prescribed by the rules so as to permit Mr Wahr to apply at the time he has. Under s.120, sub-s.4, the Tribunal may hear and determine an application under that section if satisfied that the applicant had a reasonable excuse for not appearing or being represented at the hearing, and in determining that application the Tribunal may vary or revoke the original orders made.

The ABC's application to strike out the complaint under s.75 of the VCAT Act, out of which the 6 August orders ultimately emanate, was a proceeding of this kind. When applied to matters dealt with on the papers, s.120 of the VCAT Act will in my view apply if the applicant satisfies the Tribunal that there is a reasonable excuse for the applicant not participating in the process of determining the proceeding on the papers. That is the ABC's submission as to the construction of the section and I agree with that submission.

In its reasons for decision of 6 August 1999 the Tribunal struck out the complaint because it was satisfied that Mr Wahr had engaged in conduct that unnecessarily disadvantaged the ABC. That conduct was not providing address for service of documents to which documents could be effectively served on Mr Wahr. This failure had meant that the respondent's submissions on the strike out application could not be served on Mr Wahr, that the strike out application was therefore adjourned and that the ABC had had to take additional steps to attempt to serve those submissions on Mr Wahr.

The history of the ABC's and the Tribunal's attempt to serve the submissions and directions made by the Tribunal on Mr Wahr, is set out in the Tribunal's decision date 6 August 1999. I do not need to repeat that history here.

Mr Wahr submits that he has done everything he can to facilitate the service of documents on him while he was travelling overseas and that his failure to receive documents sent to him by the ABC and the Tribunal is due to no fault of his. Indeed, he says that his failure to receive documents sent to him and the Tribunal's failure to receive documents sent by him to it, is the fault of the Tribunal's staff and the computer systems of the Department of Justice, through which communications are made by and with the Tribunal.

First, he says that the Department of Justice's computer system would not permit him to communicate with the Tribunal via his Rocket email account. Second, he says that communication with the Tribunal was made more difficult for him because the officer of the Tribunal to whom he addressed emails changed her email address and did not inform him of that change.

Third, he says that the Tribunal's staff adopted non-standard attachment naming conventions when emailing documents to him, giving different attachments the same document name. Fourth, he says that the Tribunal's attempts to transmit to him by email the respondent's submissions on the strike out application on 13 May 1999 failed because that document exceeded the permissible length of attachments which the Department of Justice's computer system would transmit.

Fifth, he says that documents sent as attachments to emails from the Tribunal were in the Word format and that he could not afford to buy this programme so that he was unable to read them. Sixth, he says that it is the fault of the Tribunal, that the Tribunal would not accept his suggestions that documents be served on him by sending them to his friend, David Thomas, or sent to an FTP site.

In my view while it is true that once the respondent's submissions sent to Mr Wahr failed to reach him because they exceeded the permissible length that could be transmitted via the Department of Justice email system and that twice attachments to emails sent to Mr Wahr by the Tribunal bore the same document name, and also that for a very short time Mr Wahr may have been unaware that the email address of one of the Tribunal's staff had changed, these are not the primary reasons why attempts to serve Mr Wahr made by the Tribunal were ineffective.

The primary reason why documents could not be effected on Mr Wahr had to do with the addresses supplied by Mr Wahr to the Tribunal. These addresses consisted of

a number of addresses and they were addresses to which eventually the Tribunal was not satisfied that satisfactory service could be achieved. The three email addresses given at various times by Mr Wahr were not satisfactory addresses. Mr Wahr's email address at Compuserve ceased to be effective after he left Canada. His address at Rocketmail appears not to have accepted various documents on the basis that the mail box was full. His address at Yahoo could not accept attachments more than a certain length. It appears from the Tribunal's file that this length was five kilobytes.

In any event, Mr Wahr did not have an MS Word programme which would have enabled him to read attachments in the Word document format. The friend's address which Mr Wahr suggested as an address for service was unsatisfactory because there was no undertaking by that friend to accept service on Mr Wahr's behalf and because that friend in any case would have had to transmit documents to Mr Wahr.

The only other address suggested by Mr Wahr were various backpacker lodgings at which Mr Wahr lived for very short and temporary periods while he was travelling through Africa.

Mr Wahr's residential address, which is mentioned in the document of referral of this complaint by the Equal Opportunity Commission, was of course not an address at which he lived whilst travelling overseas during 1998 and 1999.

Any address - e-mail address for service of documents nominated by Mr Wahr had to be an address to which entire documents could be sent in the format in which they were prepared by the Tribunal without those documents either being rejected or without the need for additional steps to have to be taken by either the respondent or the Tribunal to ensure service of documents.

I am satisfied that Mr Wahr, although requested to do so by the Tribunal on a number of occasions, did not provide an address to which documents could be effectively served. It is clear from the Tribunal's file and from the material submitted by Mr Wahr, that although the application - the original application for strikeout - although the respondent's original strikeout submissions may not have been received by him, he did receive e-mails from the Tribunal - indicated that there were attachments, and that the matter needed his urgent attention and that he needed to contact the Tribunal on an urgent basis.

Again I am satisfied that although a copy of the ABC submissions on the application under s.78 out of which the 6 August order emanated, may not have been received by Mr Wahr, the submissions on that application made by the respondent which set out the application in full, were sent by the Tribunal to all Mr Wahr's e-mail addresses. Mr Wahr received the document sent to the Yahoo address.

Although Mr Wahr may not have chosen to open the attached submissions because he did not have MS Word programme, that was Mr Wahr's choice. It did not render the service of that document defective. I am satisfied that at no stage during this proceeding did Mr Wahr attempt to contact the Tribunal by a means other than e-mail. For example, by telephone, either to discuss the documents sent to him or to seek an extension of time in which to reply. In submissions, Mr Wahr said that postal services were difficult in Africa and that he could not telephone from Africa and reverse charges.

The fact that it may have been more difficult to contact the Tribunal in one of these ways or that to do so may have involved Mr Wahr in some expense does not mean that Mr Wahr had no reasonable opportunity to communicate with the Tribunal. It was Mr Wahr's choice not to do so by the means available.

I therefore conclude that I am not satisfied that Mr Wahr had a reasonable excuse for not participating in the process that led to the making of the Tribunal's order on 6 August 1999. Accordingly that order should stand and Mr Wahr's application should be dismissed. As I said, I provided in the order an opportunity for the respondent to make application for costs. I will obtain transcript of this decision and we will send the transcript to the party. Thank you very much.

Civil and Administrative Tribunal Act 1998

Wahr v Australian Broadcasting Corporation [2000] VCAT 1080 (31 May 2000)

Wahr v Australian Broadcasting Corporation [2000] VCAT 1080

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Wahr v Australian Broadcasting Corporation [2000] VCAT 1080 (31 May 2000)