2. I adjourn this proceeding and related proceeding 59/2000 to a directions hearing after 11 August 2000.

3. I order that Mr Brendan Archer pay the costs of the Applicant of and incidental to defending the summons of the Respondents.

1. I am asked in this matter and related matter 59/2000 to set aside self-executing orders that I made, and to make further orders and directions.

2. On 5 June in this matter I directed that the Applicant file and serve amended Points of Claim by 4:00 pm on 13 June 2000. I also directed that in the event that the Applicant should fail to comply with this direction then the proceeding should stand thereafter as dismissed and the Applicant should pay the costs of the Respondents of the proceedings.

3. In related matter 59/2000, also on 5 June, I directed that the Respondents should file and serve Points of Defence by 4:00 pm on 13 June 2000. I directed also that if the Respondents failed to comply with this direction then, the proceedings should stand thereafter as determined in favour of the Applicant and the Respondents should pay the costs of the Applicant of the proceedings.

4. The Applicant in this matter and the Respondents in the related matter now ask that, in the light of the submissions made, I should set these various directions aside.

5. What has transpired, it seems, is this. In this matter the Points of Claim were not served until after 4:00 p.m. on 13 June and maybe as late as 4:10 p.m.on that day and perhaps were not received until possibly 4:50 p.m. In the related matter the Points of Defence were not filed until 16 June, some 3 days late. I refer to the affidavits in evidence before me.

6. There is no doubt that the Tribunal has power to make self-executing orders. What was said to be in doubt, however, is its capacity at all to set-aside self-executing orders or self executing orders which have taken effect.

7. It is very clear to me that if the Tribunal does have power to set aside self-executing orders once they have taken effect, that power should not be exercised unless, not to exercise it, would result in an obvious injustice. Self-executing orders are usually made for a purpose - often where, as in this and the related proceeding, there has been a history of default. The Tribunal does not make self-executing orders lightly. It expects its orders and directions to be observed. Self-executing orders often are imposed as a last resort.

8. Clearly the Tribunal is not able to sit on appeal from its own decisions. The purpose of Part 5 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) is to provide for appeals to the Supreme Court. Of course it does so only as far as questions of law are concerned and not otherwise. But I do believe that the Tribunal does have power to set-aside self-executing orders both before and after the time when execution falls or has fallen due.

In that regard I refer to various provisions in the Act itself. By s80, for example, 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. Under s97 the Tribunal has a duty to act fairly and according to the substantial merits of the case in all proceedings. By s98(1)(d) the Tribunal is required to conduct proceedings with as little formality and technicality as requirements permit. Under s98(3) the Tribunal, subject to the Act, regulations and rules may "regulate" its own procedures. By s131 an order or direction as to the procedure to be followed in a proceeding may be varied or revoked "at any time" by a member. Finally, in connection with domestic building disputes I should mention s53(1) of the Domestic Building Contracts Act 1995 by which the Tribunal may make any order it considers fair to resolve a domestic building dispute.

9. These provisions, I consider, carry with them expressly or by necessary implication the power both to make directions and to unmake (that is, set aside) directions. If there is a power to set aside a direction there is nowhere, it seems, to draw a distinction, and have a logical stopping place, between directions which may be set aside and directions which may not. Further, as regards directions containing self-executing orders which have the effect of shutting a party out, it must also be borne in mind that under s98(1)(a) of the Act the Tribunal is bound by the rules of natural justice. The rules of natural justice require, in the first instance, that a party be given an opportunity to be heard. A party prevented from presenting its case could well complain that it was denied the opportunity to be heard. At the same time, however, a party which is persistently in default is not well placed to make such a complaint.

10. In any event I am content to observe that in Ng v Rockman [1999] VSC 470 Beach J said that the Tribunal "undoubtedly" did have power to set aside the self-executing orders leading to dismissal which had been made in that case. I am bound to follow this view, I consider. I do not consider I can ignore what his Honour said by the device of saying, as it was contended, that what he said was obiter dictum. I do not intend to ignore it, in any event. I refer also to Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 where Goldberg J held that he, too, had power to set-aside self-executing orders notwithstanding that time had passed and that they had become crystallised. He considered the decision in FAI General Insurance Co Ltd v Southern Crown Exploration NL [1988] HCA 13; (1988) 165 CLR 268. I, too, was referred to that authority. It is correct to say that the Tribunal is not the Federal Court but from this it does not follow that it is not a court in generic sense for any purpose at all. The fact that it is not called a "court" is immaterial. Neither the Federal Court nor the Tribunal is, of course, other than a creature of statute. Neither has inherent jurisdiction. But each would have certain inherent or implied powers.

11. I consider, therefore, that in this and the related matter I do have power to set aside the self-executing orders which I, myself, made on 5 June. I am satisfied, also, that I should proceed to exercise the power to do so. The solicitor (Mr Archer) has frankly confessed to his errors and has offered to pay costs directly himself. When the self-executing orders have taken effect by reason of error, I am not prepared to say that a party should be penalised by being unable to raise a defence or continue with a proceeding. The amounts involved in this and the related matter are not inconsiderable and the proceedings in both have been underway for some time. I think it would work a real injustice to reject the applications made. As was said by Bowen L J in Cropper v Smith (1884) 26 Ch D 700 at 710 (which was quoted by Dawson, Gaudron and Mc Hugh JJ in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 141 ALR 353 at 355-6):

"the object of courts is to decide rights of the parties, and not to punish them for mistakes... I know of no error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party".

12. I regard that principle as governing the present cases in both proceedings. I am unable to see any prejudice whatever (outside the benefits gained by the self-executing orders themselves taking effect) which cannot be cured by an order for costs.

13. I intend, in the circumstances, to exercise my discretion to set aside the directions which I made. I did canvass with the parties the possibility of my preserving the directions and giving liberty to reapply (there having been no adjudication on the merits). The Tribunal does have power to do this. But this would not adequately deal with the position of the defence in the related matter. If I may say so, with respect, I would adopt the observation of Goldberg J in Sammy Russo that, in the present case, that would involve a "misallocation of resources" including unnecessary duplication of procedural steps.

14. Accordingly I set the directions which I made on 5 June aside as far as relevant.

15. I adjourn this proceeding and the proceeding in the related matter to a directions hearing after 11 August 2000. I continue the stay otherwise on all orders until orders and directions are made at that directions hearing. I exclude from that stay the order I make in paragraph 17 below.

16. Pursuant to s109 of the Act, being satisfied it is fair to do so, having regard to matters in s109(3), I am persuaded I should order that the Respondents in this proceeding and the Applicants in the related matter be paid their costs. Those costs will be equal to the costs they have incurred in defending the Summonses including preparation of affidavit material(s) and attendance of Counsel and instructing Solicitor.

17. As regards the costs in paragraph I should indicate that in my discretion I am not prepared to order the same to be paid on an indemnity basis. Usual party-party costs will apply. The tests in the authorities on indemnity costs have not, in my view, been met. In any case I have discretion in this matter which is not dictated or fettered by any one circumstance. In view of Mr Archer's frank admission of error I think it would be unjust to order that the Applicant in this proceeding and Respondents in the related proceeding pay such costs. Accordingly, taking up the offer made by him, I order that he pay such costs and I make such order under s109(4) of the Act.

18. In the event that the parties and Mr Archer are unable to agree upon the amount of such costs by 11 August I shall consider making a direction under s111 of the Act that the fixing or settlement of such costs be referred to the Principal Registrar.