Lillas and Loel Lawyers Pty Ltd v Santo Antonio Celona

Case •

[2014] VSCA 19

•

25 February 2014

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0042

LILLAS & LOEL LAWYERS PTY LTD Appellant

v
SANTO ANTONIO CELONA & ORS Respondents

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JUDGES NEAVE, PRIEST JJA and ROBSON AJA
WHERE HELD MELBOURNE
DATE OF HEARING 10 September 2013
DATE OF JUDGMENT 25 February 2014
MEDIUM NEUTRAL CITATION [2014] VSCA 19
JUDGMENT APPEALED FROM Celona v Lillas & Loel Lawyers Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Vice President McNamara, 20 February 2012).

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ADMINISTRATIVE TRIBUNALS – Victorian Civil and Administrative Tribunal – Appeal against decision of Vice President refusing leave under s 120 of Victorian Civil and Administrative Tribunal Act 1998 to reopen order made at compulsory conference – Order made at compulsory conference where party failed to appear – Whether compulsory conference ‘hearing’ within meaning of s 120 – Unsatisfactory affidavits explaining failure to attend – Whether attendance by telephone constitutes appearance at compulsory conference – Personal attendance required unless party previously excused – Appeal dismissed – Victorian Civil and Administrative Tribunal Act 1998 ss 83, 84, 87, 89, 100, 120.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr A W Sandbach Lillas & Loel Lawyers
For the Respondent  Mr R Kendall QC Alderuccio Solicitors

NEAVE JA:

  1. I have had the advantage of reading the draft reasons of both Priest JA and of Robson AJA. Assuming that s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘Act’) conferred power of the Tribunal to set aside orders made at a compulsory conference, I agree with Priest JA, that the appeal should be dismissed.  Although the judge’s reasons could have been more precisely expressed, the appellant did not demonstrate that his Honour erred in finding, as a matter of fact, that the appellant had no reasonable excuse for failing to attend the conference.  Nor did his Honour make any House v The King[1] error in declining to exercise his discretion to set aside the order. 

    [1](1936) 55 CLR 499, 505.

  1. In my view his Honour did not base his conclusion on the fact that the appellant lacked a reasonable excuse for non-attendance at the compulsory conference, because even if he had phoned the Tribunal and asked to participate by telephone, his attendance would have been worthless.  His Honour observed that the notice of the compulsory conference made it clear that personal attendance was required unless the party was previously excused.  Read as a whole, his reasons took account of Mr Loel’s behaviour throughout the relevant period and drew attention to the unsatisfactory content of his affidavits explaining his failure to attend.  In particular, in his costs reasons, his Honour noted that the appellant’s affidavit of 1 February 2011:

appeared to suggest that he was prevented from attending a conference in Melbourne by events which occurred on the same morning in Brisbane, when, as a matter of practical and geographical reality, Mr Loel had already lost the opportunity to attend the conference in Melbourne.

  1. I now turn to the question of whether s 120 of the VCAT Act gives the Tribunal power to re-open the order made at a compulsory conference. Part 4 of the Act is headed ‘The Tribunal-General Procedure’. Division 5 is headed ‘Compulsory conferences, mediation and settlement’ and Division 7 is headed ‘Hearings’. Priest JA has set out the sections of the Act which refer to ‘proceeding or proceedings’ and those which refer to ‘hearings’. This differentiation between ‘proceedings’ and ‘hearings’ has led Priest JA to conclude that s 120 does not apply to orders made in compulsory conferences.

  1. Although the question as to the scope of s 120 of the VCAT Act is not without difficulty, I take a different view, for the following reasons. First, if s 120 is confined to orders made in ‘hearings’ as opposed to proceedings, I consider that a compulsory conference can, for the purposes of s 120, be described as a hearing. Section 83(2) of the Act describes the functions of a compulsory conference as:

(2)       The functions of a compulsory conference are—

(a) to identify and clarify the nature of the issues in dispute in the proceeding;

(b) to promote a settlement of the proceeding;

(c) to identify the questions of fact and law to be decided by the Tribunal;

(d) to allow directions to be given concerning the conduct of the proceeding.

In the course of a compulsory conference orders may be made to give effect to these functions, including consent orders giving effect to a settlement. 

  1. The word ‘hearing’ is usually interpreted broadly.  Although Penfold J was considering court-related hearings, in JH v Director-General, Community Services Directorate,[2] her Honour observed that:

A hearing might be said to begin at the moment when the name of the matter is first called in court on the day set down for hearing, or perhaps only when counsel opens, or when evidence is first tendered. Alternatively, a hearing may begin even before the matter is called on for the substantive hearing, for instance at a preliminary courtroom event such as a directions hearing at which submissions are made about how evidence is to be taken or whether particular evidence is admissible.[3]

[2](2012) 260 FLR 21.

[3]Ibid 27 [36].

  1. Orders made by a court at a directions hearing, or at a hearing in which consent orders are pronounced to give effect to a settlement between the parties, are orders made in a hearing.  I see no reason why the same view would not be taken of orders made at a VCAT compulsory conference.  True it is that, by contrast to court hearings, compulsory conferences must be held in private, unless the person presiding otherwise directs.  But this does not require the conclusion that a conference is not to be regarded as ‘a hearing’.

  1. Secondly, despite the separate divisions in Part 4 dealing with compulsory conferences and hearings, some of the provisions in Part 4, Division 7 are not limited to hearings but apply to proceedings more generally. These include s 97, which requires the Tribunal to act fairly and according to the substantial merits of the case. Similarly, s 98 provides that the Tribunal is bound by the rules of natural justice, is not bound by the rules of evidence applicable to courts of record and must conduct proceedings with as little formality and technicality as possible and determine each proceeding with as much speed as the legislation and a proper consideration of the matters before it permit.[4] Section 100, is headed ‘Method of conducting hearings’ but the text of the section permits the Tribunal to:

conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication [emphasis added]. 

[4]See also ss 102, 103, 104 and 105.

  1. It would therefore appear to apply to compulsory conferences.

  1. Thus in my view the separate treatment of compulsory conferences and hearings for some purposes is not determinative of the question whether s 120, which is in a separate Division 9, headed ‘Orders’ was intended to be confined to orders made in ‘hearings’ and excludes orders made at a compulsory conference. It may be noted that several provisions in that Division apply to orders generally.[5]

    [5]See, eg, s 116–119, 121–22.

  1. Thirdly, s 120 is to be interpreted in light of the fact that it is the only provision which explicitly permits substantive orders to be reviewed if a person to whom the order applied did not appear and had a reasonable excuse for not attending or being represented. (Section 131 of the Act, which allows procedural orders to be varied or revoked, ‘at any time’ would not apply to a consent order settling the proceedings). There would be an obvious gap in the Act if s 120 did not include orders made in compulsory conferences. It would mean that even if the Tribunal became aware that a party did not attend a compulsory conference because they had an accident on the way to the conference, s 120 would not permit it to set aside the order.

  1. In Project Blue Sky Inc v Australian Broadcasting Authority,[6] a plurality of the High Court said that:

Ordinarily [the meaning that the legislature intends] will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[7]

[6](1998) 194 CLR 355.

[7]Ibid 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

  1. Later High Court decisions have, to some extent, moved away from the purposive approach in Project Blue Sky, and required courts to focus on the structure and text of legislation.[8] However despite the emphasis which must be placed on the words of the Act read in their context, courts can depart from the literal meaning of legislation in order to avoid absurdity, anomaly or injustice.[9]

[8]The Hon JJ Spigelman AC, ‘The intolerable wrestle: Developments in statutory interpretation’, (2010) 84 ALJ 822 and see the useful discussion of this issue by Weinberg JA in SM v The Queen [2013] VSCA 342, [41]–[56].

[9]See, eg, the passage cited from WBM v Chief Commissioner of Police [2012] VSCA 159, [41] (Warren CJ) which is cited in the reasons of Priest JA.

  1. No argument was made to us that the legislative history of s 120 cast any light on its interpretation. For the reasons given above and the unfair and impractical effect of confining s 120 to orders made in ‘hearings’ in the narrow sense, I consider that the section applies to orders made in compulsory conferences.[10]

    [10]For a useful discussion of statutory interpretation see the Hon Justice Michael Barker, ‘First you see it, then you don’t — Harry Houdini and the art of interpreting statutes’ Paper delivered at Judicial College of Australia Colloquium 5 October 2012. 

  1. It follows that the judge had power to consider whether the order should be set aside under s 120. However for the reasons already given I would dismiss the appeal.

PRIEST JA:

Introduction

  1. I have had the advantage of reading the reasons of Robson AJA in draft. His Honour has concluded that the Vice-President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) erred in refusing the appellant’s application under s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’); and pursuant to s 148 of the VCAT Act he would allow the appeal. Respectfully, I disagree. The appeal should, in my opinion, be dismissed.

  1. Since Robson AJA has thoroughly canvassed the essential facts — for which I am grateful — I am largely relieved from having to recapitulate the background to the appeal, save to the extent necessary to make my own reasons comprehensible.

Proceedings in this Court

  1. Leave to appeal to this Court was granted by Buchanan and Mandie JJA on 20 February 2012, and the appeal was heard by the Court as presently constituted on 10 September 2013.

  1. Following oral argument, by an email dated 8 November 2013 the Registrar requested the parties to provide further written submissions responsive to the following:

The appellant failed to appear at a compulsory conference, and, having had its counterclaim struck out and been the recipient of an adverse costs order, later sought a ‘rehearing’ under s 120 of the VCAT Act. Section 120 of the VCAT Act permits a person in respect of whom an order is made to apply for a review of the order if the person was not represented and did not appear at the hearing at which the order was made.

For the purposes of the appeal to the Court of Appeal the parties seem to have assumed that a compulsory conference is a ‘hearing’.  The parties are asked to make submissions as to whether that assumption is justified in light of the following matters.

Although the VCAT Act defines ‘proceeding’ as including a compulsory conference, it does not define ‘hearing’. There are indications in the Act that a compulsory conference may not be a hearing. The consequence of that is that may be that no order could have been made under s 120, and thus, perhaps, that the purported appeal under s 148 is incompetent. Section 83(1) permits a compulsory conference ‘before the proceeding is heard’ by VCAT. This may suggest that a compulsory conference is not a hearing. That view may be supported by the fact that s 83(1) deals with notice of a compulsory conference, whereas notice of the ‘hearing’ is dealt with in s 99. It may also be supported by the fact that the structure of the VCAT Act might suggest that conferences and hearings are different species. Division 5 (which includes s 83) is concerned with Compulsory conferences, mediation and settlement, whereas Hearings are dealt with in Division 7.

Further submissions of the parties

  1. Both the appellant and the respondents provided written submissions in response to the Registrar’s request. Significantly, the respondents eschewed any reliance on any absence of jurisdiction in the Tribunal to entertain the application under s 120. In his written submissions, Senior Counsel put the position as follows:[11]

1. The Respondents refer to the email from the Court dated 8 November 2013 wherein submissions were sought regarding the question whether a Compulsory Conference is a hearing for the purpose of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). Further submissions were sought as to whether the structure of the VCAT Act might suggest that conferences and hearings are difference species.

2. The Respondents have considered the written submission from the Appellant received on 16 November 2013.  They do not wish to make any reply thereto.

3. The Respondents acknowledge that at the hearing before Judge Macnamara of the VCAT on 20 February 2012 they did not contend that the Appellant could not make an application pursuant to section 120 of the VCAT Act. Further, they have not contended before this Court that the appeal herein is incompetent and they do not wish to do so.

4. The Respondents rely on their written submissions dated 30 April 2013 and the oral submissions made to the Court on 10 September 2013 to the effect that the Appellant did not have a reasonable excuse within the meaning of section 120(4)(a) of the Act for not attending or being represented at the compulsory conference.

[11]Emphasis added.

  1. Counsel for the appellant submitted that a compulsory conference is a ‘hearing’. Alternatively, he contended that s 120 of the VCAT Act applies to a ‘proceeding’, which is defined by s 3 to include ‘a compulsory conference under section 83’. He submitted that the word ‘hearing’ in s 120 (‘or s 120 of the Act itself’) includes ‘proceeding’.

  1. When interpreting the meaning of the legislation, so it was argued, the first step is to give the word ‘hearing’ its ordinary meaning.  The ordinary meaning of the word ‘hearing’ includes ‘the listening to evidence and pleadings in a court of law’.  In legal parlance, ‘hearing’ also applies to many steps in a case other than the final hearing or trial, and may encompass directions hearings, hearings of applications, assessments  and other steps.  In reliance upon what was said by the High Court in Project Blue Sky,[12] counsel argued that ‘the “legal meaning”, i.e. the meaning the legislature is taken to have intended, may not correspond to the literal or grammatical meaning’.

    [12]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78], McHugh, Gummow, Kirby and Hayne JJ.

  1. Counsel further submitted that the ordinary meaning of the word ‘hearing’, and its common use in legal parlance, plainly encompasses a member of the Tribunal ‘listening to submissions from a party present at a compulsory conference’ (in which the Tribunal may, as contemplated by s 87(b) of the VCAT Act, make orders adverse to the absent party). Nothing in the context of the words of s 120, the purposes of the VCAT Act or the canons of construction requires, so it was submitted, the meaning of the word ‘hearing’ in s 120 to be read down so as to exclude steps taken by the Tribunal under s 87(b). To the contrary, so counsel argued, the context of the words and the purposes of the legislation both require s 120 to be read widely enough to encompass a review of orders made under s 87(b) at the conclusion of a compulsory conference.

  1. Counsel also drew attention to s 97 of the VCAT Act, which requires the Tribunal to ‘act fairly and in accordance with the substantial merits of the case in all proceedings’; and argues that s 120 ‘is a remedial provision which is to be construed widely’.[13] By reference to s 100, counsel contended that ‘hearing’ and ‘proceeding’ are used interchangeably in the VCAT Act, and that ‘[t]he consequences of reading down the meaning of the word “hearing” in a way inconsistent with the intention of the draftsman may not only deprive VCAT of the opportunity to do justice but also deprive a party of a remedy entirely’.

    [13]Relying on Alesci v Salisbury [2004] VSC 475, [6], Bongiorno J.

  1. The appellant’s counsel also made submissions about the effect of s 83(1), s 97 and s 120, and about the structure of Divisions 5 and 7 of the VCAT Act, which I need not recount in detail, but which I have taken into account.

Is a compulsory conference a hearing?

  1. In my opinion a compulsory conference under s 83 of the VCAT Act is not a hearing within the meaning of s 120. Thus the Tribunal was not empowered under s 120(4) of the VCAT Act to make the order sought by the appellant.

  1. Section 3 of the VCAT provides definitions for a variety of terms, including application and applicant, function, inquiry, order and proceeding.  Since hearing is not defined, it should, in my view, be accorded its ordinary and natural meaning.[14]

    [14]Collector of Customs v Agfa-Gevart Ltd (1996) 186 CLR 389, 398; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78], McHugh, Gummow, Kirby and Hayne JJ.

  1. Part 4 of the VCAT Act, The Tribunal – General Procedure, contains 13 Divisions.  Of those, Division 4 (ss 67–82) concerns Preliminary procedure; Division 5 (ss 83–93), Compulsory conferences, mediation and settlement; and Division 7, Hearings.[15] Thus at first glance, the structure of the Act suggests a difference between compulsory conferences, mediation and settlement on the one side, and hearings on the other.

    [15]The headings to the Divisions are part of the Act: Interpretation of Legislation Act 1984, s 36(1)(a).

  1. It is noteworthy that the definition of proceeding in s 3 does not include hearing:

proceeding means a proceeding in the Tribunal, including –

(a) an inquiry conducted by the Tribunal, including an inquiry under section 141 of the Equal Opportunity Act 2010; or

(b) a compulsory conference under section 83; or

(c)       a mediation under  section 88; or

(d)a rehearing or reassessment under Part 6 of the Guardianship and Administration Act 1986; …

  1. Thus a proceeding means a proceeding in the Tribunal, and includes an inquiry (under the Equal Opportunity Act 2010); a compulsory conference (under s 83); a mediation (under s 88); and a rehearing or reassessment (under the Guardianship and Administration Act 1986). 

  1. Outside of s 3, the words proceeding or proceedings are to be found in ss 19, 25, 25A, 29, 31, 37, 39, 49 to 52, 53 to 55 and 57, 58 to 66, 68, 70, 72, 73 to 82, 83 to 93, 94 to 96, 97 to 100, 102 to 108, 109 and 110, 112 to 117, 123 and 124, 126 to 131, 143 to 147, 148, 155 and 161, and also in the transitional provisions and various Schedules.

  1. The word hearing is employed in ss 31, 34, 36, 51 and 52, 72, 78, 80, 85, 86, 88, 92, 100, 102, 108, 120, 137 and 148, and in various Schedules.

  1. There can be no doubt, in my view, that in context the expressions proceeding (or proceedings) and hearing as used in the VCAT Act are not, as the appellant’s counsel contends, used interchangeably. Plainly they bear different meanings. In my view, a proceeding is an action or matter or ‘some vehicle by which the jurisdiction of [the Tribunal] is invoked’, commenced by an application or other initiating process.  I derive guidance from the judgment of Tadgell JA in Braeside Bearings Pty Ltd v HJ Brignell and Associates (Boronia),[16] when dealing with the meaning of ‘proceeding’ for the purposes of s 3 of the Supreme Court Act 1986:

It appears to me to be clear that the word ‘proceeding’, as defined in s 3 of the Supreme Court Act 1986, is used as a generic expression to embrace what was formerly comprehended individually and respectively by the expressions ‘action’, ‘cause’ and ‘matter’.  The expression ‘matter in the court’ in the definition of ‘proceeding’ in s 3 refers on that assumption to a proceeding in the sense of a vehicle by which the jurisdiction of the court is invoked and not to the subject matter of a justiciable dispute.  That conclusion is, I think, rendered inescapable by a consideration of the Supreme Court Act 1986 as a whole, and especially of a large number of sections therein containing a reference to a ‘proceeding’, in which the word is quite obviously used in the sense I have indicated.

[16][1996] 1 VR 17, 20.

  1. A hearing, on the other hand, is something that takes place within a proceeding.  In my view, a hearing is a process in the Tribunal by which evidence or submissions might be heard, so that a decision (whether interlocutory or final) may be made.  Penfold J discussed the meaning of ‘hearing’ in JH v Director-General, Community Services Directorate:[17]

    [17](2012) 260 FLR 21,

[35]The word ‘hearing’ is commonly used to refer to activities such as the giving of evidence and the making of oral submissions that take place in the courtroom, but I consider that it is not possible to confine the word so narrowly.

[36]A hearing might be said to begin at the moment when the name of the matter is first called in court on the day set down for hearing, or perhaps only when counsel opens, or when evidence is first tendered.  Alternatively, a hearing may begin even before the matter is called on for the substantive hearing, for instance at a preliminary courtroom event such as a directions hearing at which submissions are made about how evidence is to be taken or whether particular evidence is admissible.

[37]As to when a hearing ends, this might be said to be when the court is adjourned, or when a new matter is called on, at the end of the courtroom events.  However, given the scope for material to be put before judicial officers otherwise than in the courtroom (eg by affidavits and in written submissions, as apparently happened in this case) and for re-opening a case including to provide further evidence or amend the pleadings, the hearing may continue after the close of courtroom events, and may not be definitely finished until the instant before judgment is delivered.  The position is further complicated by the scope for decisions to be made by judicial officers in the courtroom during proceedings, whether interim decisions about aspects of a ‘hearing’, such as decisions about the admissibility of evidence, or final decisions delivered without any formal break in the courtroom proceedings and with or without either ex tempore reasons or an undertaking to provide reasons at a later date. …

[38]Dictionary definitions confirm the potential breadth of the concept of a hearing. The Macquarie Dictionary, viewed online 4 January 2012, gives as one of the meanings of ‘hearing’:

4.          Law the presentation of a matter before a tribunal.

[39]Butterworths Australian Legal Dictionary (1997) contains the following definition of ‘hearing’ at p 545:

A proceeding, conducted by a court, tribunal, or administrator with a view to resolving issues of fact or law, in which oral evidence may be taken and documentary and real evidence tendered. A hearing may be by way of oral or written submission. Legal representation may not be necessary, or even permitted. Where a decision maker would not be able to resolve inconsistencies in the evidence purely on written submissions, an oral hearing may be necessary to satisfy the requirement of procedural fairness … Hearing is a generic term referring to any proceeding where argument is heard to render a decision. A trial is a hearing, although hearings may be conducted with less formality than a trial. (Emphasis added.)

  1. Support for the view that hearing bears a different meaning from proceeding is borne out by an examination of the VCAT Act, where the word ‘hearing’ is used as both a noun and a verb. For example, s 78(1)(g) gives the Tribunal certain powers if ‘the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as … (g) failing to attend mediation or the hearing of the proceeding’. 

  1. Similarly, s 80(1) provides that 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’.[18]  So, too, s 85(1) provides that, with certain exceptions, ‘[e]vidence of anything said or done in the course of a compulsory conference is not admissible in any hearing before the Tribunal in the proceeding’.  In a like vein, s 92 provides that, ‘[e]vidence of anything said or done in the course of mediation is not admissible in any hearing before the Tribunal in the proceeding, unless all parties agree to the giving of the evidence’.

    [18]See also s 100 and s 102(3).

  1. Section 86 provides a very good example of the manner in which the VCAT Act distinguishes between a proceeding and a hearing. It provides:[19]

    [19]Emphasis added.

86 Party may object to member hearing the proceeding

(1)A party to a proceeding who attended or was represented at a compulsory conference may object to the member who presided constituting the Tribunal (whether with or without others) for the purpose of hearing the proceeding.

(2)The objection must be made to the Tribunal before or at the commencement of the hearing.

(3)If an objection is made, the member must take no further part in the hearing and, if necessary, the Tribunal must be reconstituted.

  1. I turn to the provisions which are key to the resolution of this case.

  1. Section 83 provides that the Tribunal ‘may require the parties to a proceeding to attend one or more compulsory conferences … before the proceeding is heard by the Tribunal’. (This section seeks to emphasise that a proceeding is to be distinguished from the hearing of a proceeding, and that a compulsory conference is a different species to a hearing.) In recognition of the fact that a party may appear by a person who has no authority on behalf of the party to settle the proceeding (for example, a company appearing via an officer lacking the appropriate authority), s 84 provides that the Tribunal ‘may require a party to attend a compulsory conference personally or by a representative who has authority to settle the proceeding on behalf of the party’.[20] 

    [20]See also s 89.

  1. The consequences of failure to attend a compulsory conference are dealt with in s 87. It provides that if a party fails to attend a properly convened compulsory conference, the conference may proceed in that party’s absence, and a member of the Tribunal may – if the parties present agree – ‘determine the proceeding adversely to the absent party and make appropriate orders’, or ‘direct that the absent party be struck out of the proceeding’.  The section, it should be noted, does not require that there be any ‘hearing’ before the orders contemplated are made, a party’s failure to appear apparently being a sufficient trigger for the exercise of power.  It was, of course, pursuant to this section that, on 7 July 2011, a Member of the Tribunal made findings that ‘the respondent has been served with notice of today’s Compulsory Conference’ and ‘determines the proceedings adversely to the respondent’.

  1. By s 100(1), if the Tribunal ‘thinks it appropriate’, the Tribunal ‘may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication’. And by s 100(2), if the parties agree, the Tribunal ‘may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives’.  The reference to ‘all or part’ of a ‘proceeding’ is further recognition of the fact that a particular proceeding may have aspects, including compulsory conferences, mediations and hearings (both final and with respect to interlocutory applications).

  1. Although Robson AJA has set it out in his reasons, for the sake of clarity I also set out pertinent parts of s 120 of the VCAT Act:

120      Re-opening an order on substantive grounds

(1) A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.

…

(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 represented at the hearing; and

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

  1. Jurisdiction in the Tribunal under s 120 arises only if an order was made; the order was made at a hearing; and the person[21] against whom the order was made did not appear and was not represented at the hearing.  In this case there is no dispute that the appellant did not appear at the compulsory conference, and that an order adverse to it was made at the compulsory conference.  As is obvious, however, unless a compulsory conference is properly regarded as a hearing for the purposes of s 120, the Tribunal is not empowered under s 120(4) to order ‘that the order be revoked or varied’.

    [21]The expression ‘person’ includes a body corporate such as the appellant: Interpretation of Legislation Act 1984, s 38.

  1. Without much (if any) analysis, the Vice-President acknowledged that there was a controversy as to what should be regarded as a ‘hearing’ for the purposes of s 120, but concluded that, ‘Lillas & Loel was clearly a party in respect of whom an order has been made and I believe that the word “hearing” should be interpreted sufficiently widely as to encompass the process which [the Tribunal Member] undertook … and making the orders which he did’.[22]  In my opinion, the Vice‑President erred in reaching the conclusion that he had jurisdiction to deal with the matter. 

    [22]Celona v Lillas & Loel Lawyers Pty Ltd (Legal Practice) [2012] VCAT 403, [9].

  1. I acknowledge that s 120 of the VCAT Act is intended to be remedial. Moreover, I acknowledge that a conclusion that orders made at a compulsory conference are not amenable to revocation or variation might lead to inconvenient results. Possible inconvenience, however, should not be permitted to distract from the true construction of the statute. Hence Warren CJ observed in WBM v Chief Commissioner of Police:[23]

Statutory interpretation in the context of the purpose of an Act also involves looking at the consequences of different constructions to see if a construction would render a section ineffectual, or result in inconvenience, or injustice or interference with legal rights or hardship, or absurdity, or incongruity or anomaly, whereas another would not. This is especially relevant where a given situation is not within the general purview of the Act. However, caution should be exercised before relying on such results to reject what otherwise appears to be the correct construction and to avoid being distracted from the true intention of the legislation.

[23][2012] VSCA 159, [41].

  1. As I have endeavoured to demonstrate, when properly construed, the VCAT Act draws clear distinctions between a proceeding and a hearing, and between steps that might be considered aspects of the proceeding (conference, mediation and hearing).

  1. The order of the Tribunal which the appellant sought to have revoked under s 120, was one made at a compulsory conference under s 87. A compulsory conference is a different species to a hearing for the purposes of the VCAT Act. It would strain the language of the statute to conclude otherwise. Thus revocation of the order was not reviewable under s 120.

The application under s 120 should in any event  fail on the merits

  1. Even if I am wrong about the limits of s 120, and, contrary to my view, the Tribunal was empowered under s 120 to review an order made at a compulsory conference, I nonetheless consider that the application was – as properly it should have been – dismissed on its merits.

  1. Having accepted that in appropriate circumstances the ‘I forgot’ excuse may be a reasonable one, the Vice-President went on to conclude that it was not available to the appellant.  The critical findings are found in the following passage:[24]

What all of that indicates is that this is a serious exchange, not just some sort of perfunctory mention like a call over which is obviously the light in which Mr Loel viewed the compulsory conference.  He felt he might be able to fit it in by mobile phone in the interstices of a call over in the Supreme Court of Queensland.  Had Mr Loel not on his story been overwhelmed by his voluble clients, he would have dealt with the compulsory conference in a manner which would have rendered it a farce.  The level of knowledge that he has about the underlying issues and the progress of the proceedings, at least as at today’s date, is painfully inadequate.  That was demonstrated by his responses in cross-examination.  I am prepared to draw the inference that his acquaintanceship with the matter and his general detachment from it would have been at the same level in July 2011 if he had remembered to check in by mobile phone as he intended.  To approach a compulsory conference which has a Tribunal member’s time set aside for a whole day in this way, is entirely unacceptable and vexatious.  In my view what Mr Loel intended was no attendance at the compulsory conference at all.  That leads me to the finding therefore, that his absence in a substantive sense was entirely deliberate.  There is no reasonable excuse and this application is dismissed.

[24]Celona v Lillas & Loel Lawyers Pty Ltd (Legal Practice) [2012] VCAT 403, [25] (emphasis added).

  1. Although his reasons were not elaborated with the clarity that might have been desirable, in my view the Vice-President was expressing the conclusion that, based on his previous conduct in the proceeding, and in light of his knowledge of the case, Mr Loel – who effectively was the appellant for the purposes of the proceeding – did not really intend to appear at the compulsory conference, and that his absence from it was entirely deliberate. In other words, the Vice-President concluded that although hypothetically the ‘I forgot’ excuse might in circumstances be a reasonable one for the purposes of s 120, the actual situation was that the appellant had no intention of appearing at the compulsory conference. The Vice‑President drew the inference about these matters from the manner in which the appellant previously had conducted the proceeding, and had the added benefit of seeing and hearing Mr Loel give evidence.

  1. For these reasons the Tribunal was, in my opinion, well open to the Tribunal to reach the view that it did.

Conclusion

  1. The appeal should be dismissed.

  1. I would hear the parties on the question of costs.

ROBSON AJA:

Introduction

  1. The appellant, Lillas & Loel Lawyers Pty Ltd, was the respondent in VCAT proceedings brought against it by the respondents to this appeal, Mr and Mrs Celona and their company Tony Celona Nominees Pty Ltd (the Celonas).  The appellant also brought an application in VCAT by way of counterclaim against the Celonas.

  1. In the VCAT proceedings, the respondents allege that they engaged the appellant to act as their solicitors in proceedings in the Supreme Court of Victoria.  They allege that those proceedings were conducted by the appellant negligently, and, as a result, they suffered loss.  They identify the loss as an adverse costs order and also the difference between the fee actually charged by an expert witness and the amount which they allege the appellant ought to have negotiated as a cap on the expert witness’s fees.  The appellant counterclaims for fees allegedly owed by the Celonas in the Supreme Court matter.

  1. The appellant failed to appear at a compulsory conference in the VCAT proceeding.  On 7 July 2011, pursuant to the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act or the Act), the appellant’s counterclaim was dismissed and the appellant was ordered to pay the respondents $27,000 on their claim.

  1. The appellant applied under s 120 of the VCAT Act to have the order set aside. To enliven the Tribunal’s discretion to set aside the order, the appellant claimed the Tribunal should find that he had a reasonable excuse for failing to attend the compulsory conference. On 20 February 2012, the appellant’s application was dismissed with costs. On 3 May 2012, the appellant sought leave to appeal to this Court from the Tribunal order of 20 February 2012. Leave to appeal was granted by Buchanan and Mandie JJA. The appeal is brought on the basis of the s 148 of the VCAT Act right to appeal on a question of law.

  1. For the reasons given below, I would allow the appeal and remit the application for hearing and determination under s 120 of the VCAT Act. 

The relevant facts

  1. Mr James Loel, solicitor, is the sole director of the appellant and conducts his practice through the appellant in Queensland.  In or about October 2009, the respondents retained the appellant to act for them in proceedings in the Supreme Court of Victoria. 

  1. The respondents allege that the appellant neglected the file and did not take appropriate action to prepare the proceedings for hearing.  The respondents allege that due to this inaction and negligence, the appellant was not prepared for a hearing scheduled for 8 December 2009.  The respondents allege that it was therefore necessary for the hearing to be adjourned.  The respondents allege that without instructions from the respondents, the appellant consented to orders that the Celonas pay the costs of the adjournment on an indemnity basis.  The respondents allege that Mr Craig Livermore, on behalf of the appellant, agreed with them that the respondents would not be required to bear the costs order.  The respondents contend that a bill was rendered by the appellant which included the costs, contrary to the alleged agreement with Mr Livermore.

  1. The respondents also allege that the appellant retained an expert accountant to prepare a report for use in the Supreme Court proceedings.  The respondents contend that the appellant negligently failed to negotiate a capped fee with the accountant, and that the expert charged approximately $37,000 for work that should have been capped at $10,000 to $15,000.  The respondents allege that they suffered loss of the difference between the approximate capped fee of $10,000—$15,000 and the invoices totalling approximately $37,000.

  1. On 19 January 2010, the respondents purported to terminate the retainer of the appellant. According to the reasons for the decision of the Vice President who heard the application under s 120, the respondents recovered their file from the appellant in circumstances which were the subject of some controversy. The Vice President said that Mr Loel gave evidence (by telephone) that Mr Celona and someone who he described as a ‘gentleman’, (by which the Vice President understood Mr Loel to mean a standover man) entered the appellant’s office ‘and in effect monstered an employee solicitor managing the file, obtaining delivery up of the file without payment of costs or any arrangement to pay costs’.[25]  According to the Vice President, this led to the claim and counterclaim in VCAT.

    [25]Celona v Lillas & Loel Lawyers Pty Ltd (Legal Practice) [2012] VCAT 403 (Judge Macnamara, sitting as Vice President of the VCAT) (‘Reasons’) [3].

  1. The Vice President said further:

Proceedings ranged across the Commonwealth of Australia, apparently extending not merely to this Tribunal but also to the Magistrates’ Court of Queensland and the District Court of Queensland.  Arising out of those proceedings a number of costs orders have been made against Lillas & Loel.

In this Tribunal orders for $3,748, $1,500 and $1,000 have been made apparently as a result of a variety of interlocutory misdemeanours.  In the Magistrates’ Court of Queensland an order for $2,401.50 was made against the Celonas.  None of these costs have been paid.  Mr Loel says that, because he believes that ultimately his firm will be victorious and will obtain an order for payment to it of costs, it would be inappropriate to make those payments.  He believes that his firm’s entitlements would overtop the amount of any order of these costs.  He is confident that, if the matter were brought before a Supreme Court or the Federal Court of Australia, no winding up order will be made against his company.  If execution were levied, he would seek orders by way of stay.[26]

[26]Reasons [4]—[5].

  1. On 10 May 2010, the respondents lodged their claim in VCAT.  On 13 July 2010, the appellant rendered a bill of costs to the respondents.

  1. On 18 February 2011, the appellant was directed to file and serve its defence and counterclaim by 11 March 2011 and the Tribunal ordered that the matter be listed for a compulsory conference on 11 April 2011.  The Tribunal also ordered that the appellant pay the respondents’ costs of $1,500.  The appellant failed to file and serve its defence and counterclaim by 11 March 2011, but did so on 3 April 2011. 

  1. According to the Vice President’s reasons, on 15 March 2011, B2B (a Victorian firm of solicitors which was acting on behalf of the appellant) wrote to the respondents’ solicitors offering an explanation for the non-compliance with the directions relative to the defence and counterclaim, and said, inter alia:

From the affidavit and the exhibits attached you will note that our client has specified the reasons as to why he is unable to attend a trial that has been scheduled to commence before the District Court on 17th March 2011. Our client is instructed that the reasons deposed in the attached affidavit apply in this matter and are the reasons why it is now unable to comply with the orders of the Tribunal made 18th February 2011.

  1. By a letter of 3 April 2011 addressed to the Tribunal and the solicitors for the respondents, the appellant explained its reasons for failing to comply with the directions to file and serve its defence and counterclaim by 11 March 2011. Mr Loel said that on 15 March 2011, B2B wrote to the Celonas’ solicitor (as indicated above). Mr Loel said in the letter that he was a sole practitioner and that he was the solicitor for the plaintiffs in a trial in the Supreme Court of Victoria which proceeded between 7 March 2011 and 24 March 2011. Mr Loel said that the VCAT matter had been listed for a directions hearing on 4 April 2011 (after the letter). Mr Loel requested that the directions hearing be vacated and that the compulsory conference previously scheduled proceed so its functions (per s 83(2) of the VCAT Act) be fulfilled.

  1. Mr Loel asked ‘that consideration be given to granting [him] liberty to appear by telephone at the compulsory conference’ and that if the directions hearing on 4 July 2010 were to proceed, he be indulged with a short (60 minute maximum) adjournment, as he must appear before a Judge in Brisbane at 10.00 am.  There was no evidence whether or not the Tribunal responded to Mr Loel’s application to appear by telephone at the compulsory conference.

  1. On 4 April 2011, the appellant filed a defence and counterclaim.  The appellant denied that it conducted the Supreme Court proceeding on behalf of the respondents negligently and counterclaimed for the costs due to it pursuant to a costs agreement entered into between the parties (and interest thereon).  The appellant claimed $56,321.30 for legal services.  Also on 4 April 2011, the Tribunal ordered that the appellant pay the respondents’ costs of $1,000.

  1. On 27 April 2011, the respondents filed a defence to the counterclaim, in which they admitted entering the costs agreement and further admitted that they had not paid the appellant any of the amounts demanded of them by way of professional fees under the costs agreement or otherwise.  The respondents alleged that the fees claimed were excessive and unsustainable.  They relied on the solicitor’s alleged neglect or unfamiliarity with Victorian procedures.  They also objected to the claim for fees on the grounds that claims were allegedly made for conversational attendances on counsel or were of a special or unusual kind or amount.  The respondents also alleged that the appellant had failed to provide legal services in a reasonably competent manner or at all.

  1. On 12 May 2011, a compulsory conference notice was given by the Tribunal to the respondents and the appellant.  The notice provided:

Please take notice

All parties to this application are notified that a Compulsory Conference has been listed in this matter, to be conducted by the Victorian Civil & Administration Tribunal, Legal Practice List, on 7 July 2011 at 10.00am.

The Compulsory Conference will be held at 55 King Street, Melbourne.  Please check the ground floor list, Age Law List or VCAT Web site for your room number.  The matter has been given an estimated duration of 1 day(s).

Under Section 83 of the Victorian Civil and Administrative Tribunal Act 1998, the functions of a compulsory conference are:

·to identify and clarify the nature of the issues in dispute in the proceeding;

·to promote a settlement of the proceeding;

·to identify the questions of fact and law to be decided by VCAT;

·to allow directions to be given concerning the conduct of the proceeding.

Note

  • Parties should bring all documents, plans, photographs and other material relating to the matter that have not previously been filed,

  • All parties to the application are required to attend the Compulsory Conference on the date and time specified above unless previously excused,

  • Failure to attend at the Compulsory Conference may result in the Tribunal determining the proceeding adversely to the absent party and making any appropriate orders or directing that the absent party be struck out of the proceeding.

If you have any queries concerning this notice, please contact the Legal Practice List on 9628 9084.

  1. On 7 July 2011, the application came on before Member Butcher of the Tribunal for a compulsory conference.  The appellant did not appear.  Member Butcher made an order that the appellant pay the respondents the sum of $27,000 and he ordered that the counterclaim be dismissed.

  1. On 3 August 2011, the appellant made a late application by letter of that date for review of the orders made by Member Butcher pursuant to s 120 of the VCAT Act. Mr Loel said in his letter that he was not in a position to attend the direction hearing that led to the orders being made as he was a sole practitioner in Queensland and was involved in a trial which prevented him from attending. He said that the pressure of the matter that day before the Supreme Court of Queensland caused him to completely and inadvertently overlook the compulsory conference. He noted that the 14 day time limit to bring such an application had expired and he requested, under s 126 of the VCAT Act, an extension of time to 12 August 2011 to file the application. Mr Loel concluded that the other parties to the matter (the respondents) would not suffer any prejudice that could not be remedied by a costs order with respect to the application under s 120 of the VCAT Act.

  1. The application by the appellant under s 120 was listed for hearing before Vice President Macnamara on 21 December 2011. The Vice President adjourned the further hearing of the application to 20 February 2012.

  1. At the hearing on 20 February 2012, the appellant was represented by counsel.  The appellant relied on three affidavits sworn by Mr Loel, and Mr Loel gave evidence by telephone and was cross-examined.  In Mr Loel’s first affidavit of 20 December 2011, he explained why the appellant was unable to comply with the orders made on 18 February 2011 to file and serve the appellant’s defence and counterclaim by 11 March 2011.  He referred to the trial he conducted in Victoria between 7 March and 25 March 2011.  He exhibited his letter of 3 April 2011, referred to above. 

  1. In Mr Loel’s second affidavit of 20 December 2011, Mr Loel deposed that he was unable to attend the compulsory conference conducted on 7 July 2011 as he was a sole practitioner and was involved in a trial in the Supreme Court of Queensland at the time.  He deposed that the pressure of preparing for and attending this Supreme Court trial caused him to completely and inadvertently overlook the compulsory conference.  He exhibited his letter of 3 August 2011, referred to above.

  1. Mr Loel’s third affidavit was sworn on 1 February 2012.  He referred to his earlier affidavit of 20 December 2011, and said that he neglected to attend the compulsory conference conducted on 7 July 2011 as he appeared on behalf of defendants in the Supreme Court of Queensland in Brisbane in an interlocutory application to dispense with a request for trial.  He exhibited the daily law list and a court file summary for the matter.  Mr Loel deposed that his clients were Turkish, with a limited grasp of the English language, and – whilst his clients were generally emotive – they were very emotive about the dispute in their matter on the day.  He deposed that they presented at his office on the morning of the hearing without an appointment, and he subsequently took instructions and drafted an affidavit on behalf of the male defendant.  Mr Loel deposed that he also swore an affidavit and that each of these affidavits were filed at the commencement of the hearing.  He gave details of the filing numbers of the affidavits.

  1. Mr Loel deposed that the application was strenuously opposed by the applicant and that the matter proceeded to hearing before Boddice J.  Mr Loel deposed that, had he not become overwhelmed by his clients and preoccupied with preparing the application for hearing in the Supreme Court of Queensland, he could have arranged for a town agent to attend the compulsory conference on his behalf or arranged to attend by phone from the Supreme Court of Queensland.

  1. Mr Loel concluded by deposing that in preparing the application, he overlooked his obligations in respect of the compulsory conference on 7 July 2011 and he apologised for this oversight.

  1. During the hearing, Mr Loel was cross-examined by counsel for the respondents.  Mr Loel said that on the day of the compulsory conference he was aware that he was required to attend VCAT.  He said that it was in his diary.  He said his recollection was that he had made arrangements to attend by phone.  Mr Loel was asked how he proposed to do that.  He said that in the past he had rung VCAT and spoken to administrative staff, and asked to be put through at the time of the hearing or to be rung back when the hearing commenced. 

  1. During the hearing before the Vice President at first instance, the appellant submitted that Mr Loel’s oversight constituted a reasonable excuse within s 120 of the VCAT Act in that the explanation accorded with reason and human experience.  The respondents submitted that there was no reasonable excuse for the appellant’s non-attendance at the compulsory conference.  The respondents further submitted that the non-attendance was a deliberate tactic on the part of the appellant.  On this basis, the respondents urged the Tribunal to reject the evidence of Mr Loel.

  1. On 20 February 2012, the Vice President dismissed the appellant’s application under s 120 of the VCAT Act.  The Vice President further ordered that the appellant pay the respondents’ costs, to be taxed in accordance with the County Court Scale.

  1. The Vice President declined to reject Mr Loel as a witness of truth, and the Vice President further rejected the characterisation advanced on behalf of the respondents.  The Vice President nonetheless held that there was no reasonable excuse for the appellant’s non-attendance.

Ground 1 of the appeal

  1. The first ground of appeal is that: [T]he learned judge erred in failing to hold that the appellant had a reasonable excuse within the meaning of s 120 of the VCAT Act (‘a reasonable excuse’) for not attending or being represented at the hearing before member Butcher on 7 July 2011.

  1. It is first necessary to set out some relevant sections of the VCAT Act.

83  Compulsory conferences

(1)The Tribunal or the principal registrar may require the parties to a proceeding to attend one or more compulsory conferences before a member of the Tribunal or the principal registrar before the proceeding is heard by the Tribunal.

(2)The functions of a compulsory conference are—

(a)to identify and clarify the nature of the issues in dispute in the proceeding;

(b)to promote a settlement of the proceeding;

(c)to identify the questions of fact and law to be decided by the Tribunal;

(d)to allow directions to be given concerning the conduct of the proceeding.

(3)Notice of a compulsory conference must be given to each party in accordance with the rules.

(4)Unless the person presiding otherwise directs, a compulsory conference must be held in private.

(5)Subject to this Act and the rules, the procedure for a compulsory conference is at the discretion of the person presiding.

84  Tribunal may require personal attendance at compulsory conferences

The Tribunal or the principal registrar may require a party to attend a compulsory conference personally or by a representative who has authority to settle the proceeding on behalf of the party.

…

87  What happens if a party fails to attend a compulsory conference?

If a party does not attend a properly convened compulsory conference—

(a)the conference may proceed at the appointed time in the party’s absence; and

(b)if a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may—

(i)determine the proceeding adversely to the absent party and make any appropriate orders; or

(ii)direct that the absent party be struck out of the proceeding.

  1. Section 89 also permits the Tribunal or a mediator to require a party to attend mediation either personally or by a representation who has authority to settle the proceeding on behalf of the party. As mentioned below, no such requirement was imposed on the appellant in relation to the compulsory conference.

  1. Section 100 of the VCAT Act reads:

(1)If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication.

(2)If the parties to a proceeding agree, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses.

Proceeding is defined in s 3 of the VCAT Act:

proceeding means a proceeding in the Tribunal, including—

…

(b) a compulsory conference under section 83; …

  1. Section 120 of the VCAT Act reads:

(1)A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.

…

(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 represented at the hearing;  and

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

  1. There are some relevant observations that may be made regarding these provisions. First, the Act expressly permits all or part of a proceeding to be conducted by telephone if the Tribunal thinks it appropriate. This would include an appearance or attendance by telephone. Secondly, there is an express provision which permits the Tribunal to require that a party to attend a compulsory conference personally. The Act therefore contemplates that an attendance by a party might be other than personally.

  1. Section 120(1) grants a discretion to the Tribunal to hear the application to review the order made on the compulsory conference if the Tribunal is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing. In other words, the Tribunal jurisdiction to hear the application to review is only enlivened if the Tribunal is so satisfied.

The decision of the Tribunal

  1. The Vice President said s 120 raised two distinct issues. The first was whether a reasonable excuse for non-attendance at the relevant hearing had been demonstrated, and the second was, if such reasonable excuse was demonstrated, had it been demonstrated that it was appropriate in the circumstances to set aside the order. The Vice President – with respect, correctly – said that the question of whether (as a matter of discretion) the order ought to be reopened having regard, for instance, to the underlying merits of the dispute between the parties was a question which arose logically if, and only if, it was demonstrated that the reasonable excuse exists.[27]

    [27]Reasons [11].

  1. The Vice President referred to the affidavit material of Mr Loel and to counsel’s submission that the Queensland proceeding distracted Mr Loel from his attendance at the compulsory conference, that this provided a reasonable excuse for his not attending, and that this excuse should be accepted as such and a reopening order should be made accordingly.

  1. Mr Loel was cross-examined by telephone at the hearing before the Vice President.  The Vice President says that in cross-examination Mr Loel agreed that he was well aware of the listing and that he had planned to make himself available by telephone in the breaks and interstices of his attendance at the Supreme Court of Queensland.  Mr Loel gave evidence that he had previously participated in matters at VCAT by telephone and he was confident that this procedure would have been adequate.

  1. The Vice President made adverse comments about Mr Loel’s past failure to pay orders for costs.  The Vice President said that this was symptomatic of an entirely inappropriate attitude on Mr Loel’s part and an attitude which, for a practitioner, was appalling.[28] 

    [28]Reasons [20].

  1. The Vice President also referred to the affidavit of 20 December 2011, in which Mr Loel gave an explanation for being late in filing his counterclaim.  Referring to that affidavit, the Vice President said that Mr Loel’s conduct in swearing an affidavit which had nothing to do with the subject matter was entirely unsatisfactory and said that Mr Loel took little interest in the proceeding in which he was engaged as an instructing solicitor.[29] 

    [29]Reasons [17].

  1. The Vice President said that the narrative which he had given of the proceedings was a sufficient condemnation of the manner in which Mr Loel had approached the matters.

  1. The Vice President then turned to whether there was a reasonable excuse for non-attendance.  The Vice President accepted that Mr Loel forgot the compulsory conference, as he deposed to in his affidavit.  The Vice President found that Mr Loel did not suggest that he ever had any intention of being at the compulsory conference in person; nor that he had any intention of appearing at the compulsory conference by an agent solicitor or by counsel.

  1. The Vice President addressed what he said was the ultimate question, namely whether there was a reasonable excuse shown or not. The Vice President accepted that the excuses put forward by Mr Loel (that he forgot and was overwhelmed by distraction) could be a reasonable excuse for the purpose of s 120.[30] 

    [30]Reasons [23], see also [12] (and authorities cited therein).

  1. The Vice President said that the excuses provided assumed a premise that if Mr Loel had not forgotten or if had not been distracted, that he would have taken appropriate action and attended.  The Vice President said that in assessing whether the excuse was reasonable it was necessary to address what Mr Loel would have done if he had not forgotten or been distracted.

  1. As indicated above, the Vice President noted that Mr Loel had no intention of attending the conference in person.  The Vice President observed that the Tribunal did have power to order particular forms of attendance at compulsory conferences to ensure that the matter ‘[got] down to tin tac[k]s’, but said that no such orders were made in this case.[31] This was a reference to s 84, set out in my reasons above.

    [31]Reasons [23].

  1. The Vice President referred to the particular notice of compulsory conference which was given.  At this point in the Vice President’s reasoning, the Vice President had not found that appearing by telephone would constitute non-attendance.  The Vice President then made several findings about any phone call that Mr Loel might have made into the compulsory conference:[32]

    [32]Reasons [25].

(1)       The Vice President found that the compulsory conference involved a serious exchange, not just ‘some sort of perfunctory mention like a callover which is obviously the light in which Mr Loel viewed the compulsory conference’.

(2)       The Vice President said that Mr Loel ‘felt he might be able to fit the compulsory conference in by mobile phone in the interstices of a callover in the Supreme Court of Queensland’.

(3)       The Vice President found that had Mr Loel not (on his story) ‘been overwhelmed by his voluble clients, he would have dealt with the compulsory conference in a manner which would have rendered it a farce’.

(4)       The Vice President found that Mr Loel’s ‘level of knowledge that he has about the underlying issues and the progress of the proceedings, at least as at today’s date, is painfully inadequate.  That was demonstrated by his responses in cross-examination’.  The Vice President was prepared to draw the inference that ‘his acquaintanceship with the matter and his general detachment from it would have been at the same level’ at the time of the compulsory conference.

  1. The Vice President held that ‘[t]o approach a compulsory conference which has a Tribunal member’s time set aside for a whole day in this way, is entirely unacceptable and vexatious’.  The Vice President held that, in his view, ‘what Mr Loel intended was no attendance at the compulsory conference at all’.  The Vice President concluded: ‘[t]hat leads me to the finding therefore, that his absence in a substantive sense was entirely deliberate’.  The Vice President found that there was no reasonable excuse and the application was dismissed.[33]

    [33]Reasons [25].

Appellant’s submissions

  1. The appellant contends that attendance by telephone was permissible, as no order for physical attendance at the compulsory conference had been made. The appellant says that in considering the question of reasonable excuse, the Vice President wrongly disregarded Mr Loel’s previous experiences of appearing before the Tribunal by telephone. The appellant says that the Vice President was wrong in holding that the attendance planned by Mr Loel would have been no attendance at all. The appellant says that such an attendance (by telephone) would have precluded the making of the s 87(b) order by Member Butcher.

  1. The appellant contends that the only issue for the Vice President was whether the appellant’s excuse for not attending by telephone (as he had intended) was reasonable.  The appellant contends that the Vice President would have resolved this issue in favour of the appellant had he not engaged in the irrelevant analysis of whether the content or form of the intended appearance would have been satisfactory.

  1. The appellant contends that s 87(b) provides sanctions for non-attendance at a compulsory conference, not for unsatisfactory attendance. The appellant says that the Vice President fell into error by treating his strong criticism of the appellant’s intended approach to the compulsory conference as bearing on his excuse for not attending the conference.

  1. The appellant says that, rather than applying s 120 liberally, the Vice President based his decision on considerations that were extraneous to the merits of the substantive application, and a determination of the central question of whether overlooking an attendance was a reason for non-attendance which accords with reason and human experience.

Respondents’ submissions

  1. The respondents submit that the Vice President was justified in holding that, in the circumstances, the proposed telephone attendance would not have constituted an attendance at all.  The respondents submit that for Mr Loel to assume (in the absence of an order for physical attendance at the compulsory conference) that attendance by telephone was permissible ignored the terms of the 12 May 2011 notice of compulsory conference.  The respondents submit that there was ‘no justification for Mr Loel to assume (as he did) that the appellant could attend such a critical conference by telephone’.

Analysis

  1. It was not suggested (either at first instance or on the hearing of the appeal in this Court) that a compulsory conference may not be a ‘hearing’ for the purpose of s 120,[34] in which case the appeal to this Court would not be competent. After judgment was reserved, the Court asked the parties to file written submissions on this question. The applicant filed written submissions submitting that that a compulsory conference is a ‘hearing’, and (alternatively) that s 120 applies to ‘proceedings’. The respondents (in their written submissions) indicated that they did to wish to make any reply to the applicant’s written submissions on this question, acknowledging that they had not contended the issue before Vice President Macnamara and indicating that they did not wish to contend that the appeal to this Court was incompetent; the respondents relied on their previous submissions that the applicant did not have a reasonable excuse for not attending or being represented at the compulsory conference.

    [34]Compare Turner v Hidayat [2011] VSC 202, [35].

  1. I have had the benefit of reading in draft the reasons of Neave JA and Priest JA. For the reasons given by Neave JA, I respectfully agree that s 120 applies to orders made a compulsory conferences.

  1. I turn then to the question of whether the applicant had a reasonable excuse for not attending or being represented at the compulsory conference.  In my respectful view, the Vice President fell into error in assessing whether the applicant had a reasonable excuse for not attending or being represented at the hearing by taking into consideration the quality of the contributions that the appellant may have made at the compulsory conference if it had appeared as it intended.  The appellant said that Mr Loel had sought permission to attend the hearing of the compulsory conference by telephone, but he had forgotten to telephone.  There was evidence that the conference was noted in Mr Loel’s diary, and there was also evidence which was accepted that Mr Loel was overwhelmed on the morning of the compulsory conference by his clients in the Supreme Court of Queensland.  There was evidence that Mr Loel had intended to call, and it is apparent that the Vice President accepted this in his reasons.[35]

    [35]See Reasons [23] (‘… the premise here is that “if I hadn’t forgotten, if I hadn’t been distracted, I would have taken appropriate action, I would have attended”.’) and [25] (‘He [Mr Loel] felt he might be able to fit it in by mobile phone in the interstices of a call over in the Supreme Court of Queensland.’).

Does appearing by telephone constitute ‘attending’ a compulsory case conference?

  1. Section 87 is only enlivened if a party does not attend a properly convened compulsory conference. Otherwise, no other orders can be made on the liability of the parties at a compulsory conference. Thus, the sole trigger that enlivens the power of the Tribunal (so long as the other conditions are satisfied) is that a party does not attend a properly convened compulsory conference.

  1. It is not clear from the Vice President’s reasons whether the Vice President was of the view that a telephone attendance would not constitute ‘attending’ for the purposes of s 120. On one view, the Vice President appears to accept that it may, as he looks at additional factors before deciding that Mr Loel did not intend to attend at the compulsory conference. The Vice President also observed that no order had been made for personal attendance at the compulsory conference, as might have been made under s 84.

  1. On the other hand, Mr Loel had not received assent from the Tribunal to his request to appear by telephone at the compulsory (contained in his letter of 3 April 2011).  Moreover, there is weight in the submission developed on the hearing of the appeal by the respondents (in dialogue with the Court) that the notice of compulsory conference dated 12 May 2011 strongly implied attendance should be personal by making reference to the physical location of the conference and specifying that ‘Parties should bring all documents, plans, photographs and other material relating to the matter that have not previously been filed’.

  1. During the hearing, the Court also made reference to VCAT’s Practice Note – PNVCAT 5: Directions Hearings and Urgent Hearings.  This Note provides that if it is impracticable for a party or its professional advocate to attend a directions hearing or urgent hearing in person (eg for parties in regional or rural areas), arrangements may be made with the Tribunal registry for attendance by telephone.  The note then provides that requests for telephone attendance should be arranged in advance, with reference being made to a ‘Telephone Attendance Request form’.  It was suggested that, a priori, similar principles would apply to arranging attendance by telephone at a compulsory conference.  However, as this Practice Note came into force on 15 March 2012 (nearly a year after the compulsory conference), its utility in deciding the present case is questionable.[36]

    [36]The Note’s header indicates PNVCAT5 did not supersede some other Note, suggesting there was previously no Practice Note dealing with these issues.

  1. In weighing these considerations, it is appropriate to bear in mind that the Mr Loel had given unchallenged evidence that he had previously appeared in VCAT proceedings by telephone, and that although he had not received assent to the request in his letter of 12 May 2011, it had also not been denied. Moreover, as the Vice President noted, no order under s 84 for personal attendance had been made. It is apparent from s 100 that the Tribunal may, where it considers it appropriate, permit attendance (including at a compulsory conference) by telephone. VCAT aims to resolve disputes efficiently and cost-effectively, and (as a tribunal) with a lower degree of formality than a court. This is relevant given that Mr Loel is an out-of-state practitioner.

  1. In my opinion, an appearance by telephone at the compulsory conference would have constituted ‘attendance’.  In my respectful opinion, the Vice President erred in determining whether or not the applicant had reasonable excuse for not attending by having regard to the form of attendance proposed and whether or not that form was suitable for a compulsory conference.

  1. In my opinion, the Tribunal correctly held that ‘I forgot’ or ‘I was overwhelmed’ may constitute a reasonable excuse.[37] It was also correct to ask what the applicant intended to do but forgot or was overwhelmed from doing. In this case, the appellant intended to be put through to the compulsory conference on the telephone. Under the Act, the compulsory conference could have been conducted on the telephone. Attending need not necessarily be in person unless the Tribunal so ordered under s 84.

    [37]See Reasons [12] and authorities cited therein.

  1. Upon the applicant telephoning, the hearing may have continued in that form if the Tribunal considered it appropriate. The Tribunal was bound by the rules of natural justice to hear an application by telephone from the appellant for the compulsory conference to be conducted by telephone. If, after hearing the application, the Tribunal did not consider it appropriate, it could so determine. But the appellant by his application at the conference would thereby be ‘attending’ the compulsory conference. There was no evidence before the Court that there were, at the time of the compulsory conference, any rules or procedures in force for telephone attendance at a compulsory conference. Once there was an attendance, the jurisdiction to make an order under s 87(b) would not have been enlivened.

  1. The authorities have held that s 120 should be construed liberally.[38]  Regard should also be had as to the common law principle that a litigant has a prima facie right to present his or her case.  The Full Court of the Supreme Court of Victoria noted this in Kostokanellis v Allen,[39] where Harris J (for the Court) quoted with approval Jenkins LJ in Grimshaw v Dunbar:

… a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case – no doubt on suitable terms as to costs … .[40]

[38]Alesci v Salisbury [2002] VSC 475, [6], and see also other authorities cited in J Pizer, Pizer’s Annotated VCAT Act (4th ed, 2012), 622.

[39][1974] VR 596, 605.

[40][1953] 1 QB 408, 416.

Does an attendance have to be a meaningful attendance to satisfy s 120 of the Act?

  1. The appellant submits that the Vice President fell into error by treating his strong criticism of the appellant’s intended approach to the compulsory conference as bearing on its excuse for not attending the conference.

  1. If a party attended in person, there could be no suggestion that he or she had not attended because that party was under-prepared, or only stayed a short time, or failed to negotiate in good faith, or otherwise did not engage in a meaningful way.  Similarly, if a telephone attendance was permissible, then a party’s failure to engage in a meaningful way would not deprive the telephone call of qualifying as an attendance.

  1. The Vice President appears to have proceeded on the assumption that technically a telephone appearance may constitute ‘attending’ a compulsory conference, but in view of the fact that a whole day had been set aside, the appellant only had a mobile telephone, he was otherwise busy with a matter in the Supreme Court of Queensland, and in the opinion of the Vice President was not adequately familiar with the matter, such an appearance would have been vexatious and oppressive would not have constituted an attendance. 

  1. In my respectful opinion, the Vice President fell into error in having regard to matters going to the quality of the attendance that may be made by telephone in deciding whether or not an attendance had been intended.  The critical issue facing the Vice President was the reasonableness of the excuse for not telephoning or being represented at the hearing.

  1. In my opinion, on its proper construction the statement by the Vice President that ‘what Mr Loel intended was no attendance at the compulsory conference at all’ was directed at the quality of the appearance proposed rather than whether or not Mr Loel had established a reasonable excuse for not appearing.

  1. First, in my opinion, this construction is consistent with earlier sentences of the paragraph in which that statement is found: ‘[h]e [Mr Loel] felt he might be able to fit it in by mobile phone in the interstices of a call over in the Supreme Court of Queensland. Had Mr Loel not on his story been overwhelmed by his voluble clients, he would have dealt with the compulsory conference in a manner which would have rendered it a farce’.  This construction is also consistent with the earlier findings of the learned Vice President as to the honesty of Mr Loel’s testimony.  It is also consistent with the Vice President’s observations as to the inadequacy in the circumstances of the telephone attendance where a whole day had been set aside.  What is clear, however, is the Vice President did not reject that an appearance could be made by telephone, and (secondly) he did not reject the evidence of Mr Loel that he intended to telephone, but forgot to do so.  None of these findings by the Vice President would have been pertinent if the Vice President was of the view that a telephone attendance would not constitute an appearance for the purpose of s 120.Vice

  1. Accordingly, I would allow the appeal under s 148. I would remit the application under s 120 for hearing on the basis that the Tribunal was satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing. In these circumstances, I would envisage that the Tribunal would hear the application taking into account the principles outlined in Lubura v Nezirevic.[41]  I would order that the parties have the opportunity of providing further evidence for the purposes of the hearing of the application.

    [41][2013] VSCA 215.

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