On 16 October 1998 ABC applied, under s.75 of the VCAT Act, to have the complaint struck out alleging it was misconceived and lacked substance. It agreed the matter should be dealt with on the papers rather than by oral submission.

The Tribunal then attempted to contact Mr Wahr at the Rocketmail address in October and November to advise him that the application had been made and to request his agreement to deal with the matter on the papers. Those attempts were unsuccessful. The Tribunal then listed a directions hearing on 25 January 1999. On 22 January 1999, Mr Wahr sent an email to the Tribunal advising it that he had received earlier emails from the Tribunal but was unable to open some of them because he did not have Word 8 and that he could not attend the Tribunal's hearing on 25 January because he was in Jerusalem.

The Tribunal held its directions hearing on that date and gave directions for the filing of written submissions on the strike out application by the parties. The directions required Mr Wahr to acknowledge to the Tribunal the receipt of the respondent's written submissions. The respondent filed its written submissions on 15 February, seven days later than the date required by the Tribunal's directions.

I am prepared to extend the date for the filing of written submissions to 15 February on the basis that the extension is short and that there is no prejudice to Mr Wahr. I am satisfied that the respondent then unsuccessfully attempted to serve those submissions on Mr Wahr by email. Mr Wahr emailed to the Tribunal acknowledging receipt of the Tribunal's directions but saying he had not received the respondent's written submissions. This was on 15 February and he nominated another email address. This email address was georgeiw@yahoo.com which I call the Yahoo address.

On 22 February 1999 Mr Wahr sent emails to the Tribunal and also on 25 February. Mr Wahr sent emails to the Tribunal suggesting that documents may not be reaching him because his Yahoo address mail box was full. Mr Wahr then sent a number of emails to the Tribunal in February and March 1999 indicating that he was then travelling in South Africa.

I am satisfied on the material before me that the ABC, the respondent, attempted to serve the s.75 application written submissions at the Rocketmail address and at the Yahoo address and on both occasions was unsuccessful and that it also sent a hard copy of those submissions to the Richmond address.

On 24 April 1999 the Tribunal made further directions setting a new time-table for written submissions on the application by the complainant and for the respondent's written submissions in reply. On 1 May 1999, Mr Wahr emailed the Tribunal confirming receipt of those directions and saying that the Yahoo address perhaps could not receive the submissions because the size of the document was perhaps larger than the maximum size which that email address could receive.

On 13 May 1999 the Tribunal attempted three times, unsuccessfully, to serve the written submissions by email on Mr Wahr. On 19 May the Tribunal made orders which, after reciting the history of attempts to serve Mr Wahr, required Mr Wahr, within 14 days, to notify the Tribunal of an address for service at which the Tribunal would be satisfied that documents could be successfully served. And permitting the respondent to apply under s.78 of the VCAT Act if the first part of the order was not complied with. That is paragraph 1 of the order.

It adjourned the strike out application to a date to be fixed. On 21 May a copy of an email to the Tribunal from Mr Wahr was faxed by one of Mr Wahr's friends. That email confirms receipt of the Tribunal's orders of 19 May and indicates that the Yahoo address could only receive documents that were no more than 500 kilobytes in length. It suggests that longer documents should either be broken up and sent in smaller sections of the required length or should be given to one of Mr Wahr's friends who would forward it to him or should be sent to a particular backpackers hostel, the address of which was given in the email where Mr Wahr would be staying for five days.

There then follows a number of emails between the Tribunal and Mr Wahr where Mr Wahr reiterates these suggestions and also suggests that the document should be transferred to him by sending it to a nominated FDP site. The replies from the Tribunal state that these suggestions do not amount to the giving of a proper address for service which complies with the Tribunal's orders of 19 May.

On 16 June 1999 the Tribunal ordered that for the purposes of paragraph 1 of its 19 May order, it was satisfied that the complainant had not complied with that paragraph. The respondent, as it was permitted to do by that order, then applied under s.78 of the VCAT Act both for the complaint to be struck out and for costs.

Among other things s.78(2) permits the Tribunal to strike out a proceeding to which s.78(1) applies and also to order costs under s.109 of that Act. Among other things, s.78(1) applies to a proceeding if the Tribunal believes that a party is conducting the proceeding in a way that unnecessarily disadvantages another party. Examples, but not an exhaustive list of this conduct, are then given.

The examples include failing to comply with an order or direction of the Tribunal without reasonable excuse, failing to comply with the rules, that is the VCAT Rules 1998 and causing an adjournment. As I have said, s.78(2) also permits a cost order to be made. Section 109 only permits the Tribunal to award costs where it is fair to do so having regard to a number of specified circumstances.

These circumstances are specified in s.109(3). They include the same matters as I have just mentioned in connection with s.78(1). I am satisfied that Mr Wahr has conducted this proceeding in a way that unnecessarily disadvantages the respondent. While Rule 4.07(1) and Rule 6.01(6) of the VCAT Rules 1998 seem to contemplate an address for service of documents in Victoria, I would have been prepared, given what s.140 of the VCAT Act states and that it clearly contemplates service by electronic means including email, I would have been prepared to accept an email address to which the respondent, or for that matter the Tribunal, could send whole documents without them being rejected and without having to take any other step than sending the document in electronic form.

The email addresses given by Mr Wahr are not sufficient addresses for this purpose. The only other address for service which Mr Wahr has given in Victoria is the Richmond address at which he does not now live because he is overseas and to which he may not return for some time given that his return date is uncertain. He has also given the address of a friend in Victoria.

There is no document before the Tribunal indicating that this friend has agreed to undertake the receipt of service of documents on Mr Wahr's behalf and there is insufficient material for me to say that documents which are sent to this friend will in fact reach Mr Wahr. I am not satisfied that either of these addresses are satisfactory addresses to which Mr Wahr can actually be served documents.

The failure to provide a proper address for service has made it impossible for the respondent and the Tribunal to serve the respondent's written submissions on the strike-out application and has led to the adjournment of that application to a date to be fixed. Mr Wahr has suggested a number of alternative addresses for service, all of which do not comply with paragraph 1 of the Tribunal's order of 19 May.

The Tribunal has consistently advised Mr Wahr that these suggestions do not constitute sufficient addresses for service. In these circumstances, unnecessary disadvantage has been caused to the respondent and the complaint should be struck out.

Although the complaint is struck out, it does not necessarily lead to the further conclusion that costs should be awarded under s.109. For that to occur I must be satisfied that it is fair to award costs, having regard to the various factors I have mentioned. And so to depart from the rule in s.109(1) that costs lie where they fall.

I am satisfied on the material before me that Mr Wahr has made what he considers to be genuine attempts to provide an address for service of documents but he has been advised on a number of occasions that the addresses provided are inadequate. The failure to provide an adequate address for the service of documents has meant that the strike out application has been adjourned and that the respondent has had to undertake additional work to attempt to serve its written submissions made on that application. It has also resulted in the making of this current application to strike out the complaint.

In my view costs should be awarded against Mr Wahr in relation to the period beginning 16 February 1999 onwards, that is the period after the respondent has prepared its written submissions on its strike out application. The respondent, in my view, should not have awarded to it the costs of preparing that submission because those costs were not incurred because of Mr Wahr's failure to provide an adequate address for service.

Costs to the extent that they are ordered, will be assessed on scale A of the County Court scale. As I have said, strike out implies that there is a right to apply for reinstatement and I have made a provision for this in the order so that there is a definite time period within which the application must be made.

That completes my reasons for decision. We will arrange to have a copy of the transcript of these reasons sent to the respondent and served on Mr Wahr at the various addresses for service that are provided for already in the order making directions originally for this application. Thank you very much.