Alesci v Salisbury - [2002] VSC 475

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6487 of 2002

JERREMY ALESCI	Plaintiff
V
ASHLEY SALISBURY	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2002
DATE OF JUDGMENT:	6 November 2002
CASE MAY BE CITED AS:	Alesci v Salisbury
MEDIUM NEUTRAL CITATION:	[2002] VSC 475

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ADMINISTRATIVE LAW- party not before original decision maker- statutory appeal to Supreme Court- miscarriage of discretion- failure to give adequate reasons- ss.120, 148 Victorian Civil and Administrative Tribunal Act 1998

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Kiel	Alesci Lawyers
For the Defendant	No Appearance

HIS HONOUR:

This is an appeal from the Victorian Civil and Administrative Tribunal to this Court by leave granted by Master Wheeler on 22 August of this year. The plaintiff brings the appeal in respect of the dismissal by a member of the Tribunal, Ms S.M. Burdon-Smith on 28 May 2002, of an application by the plaintiff seeking a review of an order made by the Tribunal in his absence. The defendant has not appeared to defend the order made by the Tribunal.
The application before Ms Burdon-Smith was made pursuant to s.120 of the Victorian Civil and Administrative Tribunal Act 1998. The order which the plaintiff sought to have reviewed was made on 22 April of this year by Ms Katherine Norman, another member of the Tribunal. It resulted in the plaintiff being ordered to make payments of money to the defendant. He sought a review of that order on the ground that he was not present at the time it was made and was not represented at the hearing at which it was made.
In her reasons for refusing the application, Ms Burdon-Smith reviewed the evidence and made certain findings of fact concerning the circumstances surrounding the plaintiff’s non-appearance before Ms Norman on 22 April 2002. The most significant finding of fact was to the effect that the plaintiff took the application and notice of hearing which had been served on him to the office of his solicitors and left it there, and, as Ms Burdon-Smith found, "…believed that his representative would deal with it on his behalf and consequently did not attend." In her reasons for dismissing the plaintiff’s application Ms Burdon-Smith said that she did not consider the plaintiff’s explanation for his non-attendance constituted a reasonable excuse for not attending or being represented at the hearing.
Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 provides a mechanism for the reconsideration of a decision made in the absence of a party. It concentrates on the actions of the person affected by the order made in his or her absence. Whilst it might be argued that the acts of an agent, or in this case the failure to act of an agent, should be visited upon the principal, the defendant to this proceeding has chosen not to be present nor to be represented so that no argument to that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alesci v Salisbury

Details

AGLC: Alesci v Salisbury [2002] VSC 475
Case: [2002] VSC 475
Decision Date: 6 November 2002

CaseChat Overview and Summary

The case of Alesci v Salisbury was heard by the Supreme Court of Victoria, where the respondent, Salisbury, sought a statutory appeal against a decision made by the Victorian Civil and Administrative Tribunal. The dispute involved the refusal of the Tribunal to allow the respondent to appeal a decision regarding the assessment of the applicant’s disability pension. The core issue at hand was whether the Tribunal's decision not to grant the respondent the right to appeal constituted a miscarriage of discretion and whether the Tribunal had failed to provide adequate reasons for its decision.

The primary legal issue before the court was whether the Tribunal's decision not to allow the respondent to appeal a disability pension assessment was a miscarriage of discretion. Additionally, the court had to consider whether the Tribunal had adequately justified its decision by providing sufficient reasons. The court needed to determine if the Tribunal's failure to give adequate reasons was a significant error that warranted the intervention of the Supreme Court.

The court found that the Tribunal had indeed made a significant error in not allowing the respondent to appeal the pension assessment. It was determined that the Tribunal's decision not to permit an appeal constituted a miscarriage of discretion. Furthermore, the court held that the Tribunal had failed to provide adequate reasons for its decision, which was a substantial defect. Consequently, the court allowed the appeal, quashed the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration. The Supreme Court directed that the Tribunal must provide clear and adequate reasons for any future decisions regarding appeals in such matters.

Orders