Lockwood v Ecoliv Buildings Pty Ltd
[2017] VSC 109
•6 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 01561
IN THE MATTER OF section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)
BETWEEN
| DEAN LOCKWOOD | Plaintiff |
| and | |
| ECOLIV BUILDINGS PTY LTD (ACN 142 871 850) | Defendant |
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JUDGE: | Justice Zammit |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2017 |
DATE OF JUDGMENT | 6 April 2017 |
CASE MAY BE CITED AS: | Lockwood v Ecoliv Buildings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 109 |
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JUDICIAL REVIEW – Statutory interpretation – what constitutes a ‘hearing at which the order was made’ for the purposes of considering an application for review made under Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Charnley | Telco Legal Pty Ltd |
| For the Defendant | Ms Clarkin | DCL & Associates Lawyers |
HER HONOUR:
This is an application for leave to appeal made pursuant to Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 (VCAT Act). The Plaintiff (Mr Lockwood) seeks to set aside paragraphs 1 and 2 of the orders made by Tribunal Member Tyler on 4 April 2016. Further, Mr Lockwood seeks that his application for review pursuant to VCAT Act s 120 (filed on 27 January 2016) be remitted to VCAT for reconsideration.
Mr Lockwood was the Respondent in VCAT proceeding C6943/2014 (‘the VCAT Proceeding’).
The Defendant before this Court, Ecoliv Buildings Pty Ltd (Ecoliv Buildings), was the Applicant in the VCAT Proceeding. Ecoliv Buildings opposes the granting of leave to appeal.
Mr Lockwood relies upon written submissions dated 8 September 2016, the affidavits of Anita Raj (dated 15 June 2016, 31 May 2016, 24 May 2016 and 4 May 2016) and the Affidavit of Dean Lockwood dated 1 April 2016.
Ecoliv Buildings relies upon written submissions dated 29 September 2016, the affidavits of Ashley Beaumont (dated 10 August 2016, 24 May 2016 and 8 December 2015) and the Affidavit of Whitley Foreman (dated 4 December 2015).
While I consider that leave should be granted, I do not consider there has been an error of law and therefore the appeal is dismissed. My reasons are as follows.
Background
On 19 August 2015, a hearing in the VCAT Proceeding was held before Member K Norman (‘19 August 2015 Hearing’). Mr Lockwood did not attend that hearing and was not legally represented.
At the 19 August 2015 Hearing, Member K Norman made the following findings and orders:
FINDINGS
The Tribunal having:
(a)examined the documents on the file, including the registry’s record of documents sent to the parties; and
(b)hearing evidence from the applicant
finds the respondent has been served with a copy of the application and with notice of today’s hearing.
ORDERS
1. The Tribunal orders that the respondent must now pay the applicant the sum of $5,691.00.
2. Under section 115B(1) of the Victorian Civil and Administrative Tribunal Act1998 the Tribunal orders the respondent to reimburse the following fees to the applicant:
(i) the application fee paid by the applicant of $158.90[1]
[1]Affidavit of Anita Raj dated 4 May 2016, exhibit AR-1, Court Book 16.
Mr Lockwood received a copy of the order made at the 19 August 2015 Hearing on 1 October 2015. He then filed an application for review on 19 October 2015 under VCAT Act s 120, which provides as follows:
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 —
(i) the applicant had a reasonable excuse for not attending or being represented at the hearing; and
(ii) it is appropriate to hear and determine the application having regard to the matters specified in subsection (4A); and
(b) if it thinks fit, order that the order be revoked or varied.
(4A) For the purposes of subsection (4)(a)(ii), the matters are —
(a) whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and
(b) any prejudice that may be caused to another party if the application is heard and determined.
In support of the application for review, Mr Lockwood made a statutory declaration.[2] He declared, among other things, the following reasons for non-attendance at the 19 August 2015 Hearing:
Given that settlement the parties were close to resolving the matter, I inadvertently overlooked the hearing date of 19 August 2015 which resulted in my non-attendance.[3]
[2]Statutory Declaration of Dean Lockwood declared 19 October 2015, exhibit AR-2 to the Affidavit of Anita Raj dated 4 May 2016, CB 18.
[3]Ibid, CB 20.
By letter from VCAT dated 11 November 2015, the parties were notified that a review had been granted and the hearing listed for 9 December 2015.[4]
[4]Affidavit of Anita Raj dated 4 May 2016, exhibit AR-3, CB 32.
On 25 November 2015, Mr Lockwood sought consent from Ecoliv Buildings to adjourn the hearing on 9 December 2015 to the first business day following 26 January 2016 on the basis that he would be interstate on 9 December to attend a wedding.[5] Ecoliv Buildings advised Mr Lockwood on 27 November 2015 that it did not agree to the adjournment.[6]
[5] Affidavit of Anita Raj dated 31 May 2016, exhibit AR-4, CB 191.
[6]Ibid, CB 193.
On 30 November 2015, Mr Lockwood made an application to VCAT to adjourn the hearing listed on 9 December 2015 to a date not before 15 December 2015. [7]
[7]Ibid, CB 184.
By Orders dated 1 December 2015, Deputy President H Barker refused the application for adjournment, finding that ‘the applicant for the adjournment has not provided sufficient evidence for the granting of an adjournment’.
On 3 December 2015, Mr Lockwood made a further application to VCAT for an adjournment of the hearing on 9 December 2015[8] to a date not earlier than 15 December 2015. In support of the application, Mr Lockwood stated as follows:
(a)I did not provide a copy of my itinerary in support of the first application for adjournment because my flight was not yet booked … I will be pleased to provide the Tribunal with a copy of my itinerary when I have booked my flight to be in Brisbane on 9 October 2015;
(b)I will not be able to attend the hearing via videolink on 9 December 2015 as I will either be travelling or attending to the family commitments in Brisbane; and
(c)on 25 November 2015 I attempted to obtain consent from [Ecoliv Buildings]. At that time I sought an adjournment to the first business day after 26 January 2016. In the first application for adjournment and this further application, I am seeking an adjournment of less than a week.
[8]Ibid, CB 179.
Member J Good refused Mr Lockwood’s further application for adjournment by order dated 4 December 2015. The member found that Mr Lockwood ‘has not provided any further evidence or different reasons for the granting of an adjournment’.
On 4 December 2015, Mr Lockwood made a further application for adjournment of the hearing on 9 December 2015.[9] The application states, inter alia, that:
(a)I have made all reasonable efforts to obtain consent from [Ecoliv Buildings]. I have been very clear that a pre-existing commitment I have to attend my sister-in-law’s wedding in Queensland prevents me from being in Victoria on 9 December 2015; and
(b)I request the Tribunal review its order and adjourn the hearing to 15 December 2015 or any other date thereafter.
[9]Ibid, CB 174.
On 8 December 2015, Member K Campana made findings in chambers[10] that Mr Lockwood had pre-arranged travel commitments, and ordered that the review and rehearing be adjourned to 4 January 2016.
[10]Ibid, exhibit AR-5, CB 195.
On 17 December 2015, Mr Lockwood sought Ecoliv Buildings’ consent to adjourn the hearing of 4 January 2016 to a date after 27 January 2016, on the basis that he will be interstate from 20 December 2015 to 27 January 2016, and his office will be closed from 23 December 2015 to 11 January 2016.[11] Ecoliv Buildings did not consent to the adjournment and informed Mr Lockwood on 23 December 2015.[12]
[11]Ibid, exhibit AR-8, CB 248.
[12]Ibid, CB 252.
On or about 23 December 2015, Ms Raj, solicitor for Mr Lockwood, made an application to VCAT on behalf of Mr Lockwood, seeking to adjourn the 4 January 2016 hearing.[13] Member S Liden refused the application for adjournment on 29 December 2015, finding that:
At [Mr Lockwood’s] request, the hearing previously scheduled for 9 December 2015 was adjourned to 4 January 2016. [Mr Lockwood’s] application for an adjournment of the 9 December 2015 hearing requested adjournment to a date not earlier than 15 December 2015 and did not indicate that any dates after 15 December 2015 were unsuitable.
[13]Affidavit of Anita Raj dated 4 May 2016, exhibit AR-6, CB 62.
Mr Lockwood made a further application for adjournment which was refused by order of Member K Campana dated 30 December 2015, in which Member Campana found that the information provided in the request ‘goes no further than the information previously provided to the Tribunal when orders were made on 29 December 2015 and 8 December 2015’.
Mr Lockwood did not attend and he was not represented at the hearing on 4 January 2016 (the ‘First Review Hearing’).
At the First Review Hearing, the following orders were made by Member Tyler:
1.The application for review is refused because the applicant for review did not attend the hearing of this matter.
2.Order made 19 August 2015 shall remain in force.
On 27 January 2016 Mr Lockwood filed a further application for review under VCAT Act s 120. In support of the application, Mr Lockwood made a statutory declaration, declaring among other things:
(a)my previous applications for adjournments requested an adjournment to a date after 15 December 2015 based on my understanding that VCAT would list the matter for a hearing on 15 December 2015, shortly thereafter, and in any case prior to the Christmas and New Year period;
(b)I was unable to attend the hearing on 4 January 2016 as I was in Brisbane. This was envisioned in the 25 November letter provided to VCAT in the First Adjournment Request; and
(c)in light of being interstate and the closure of my firm, I was unable to prepare for the review hearing, attend the hearing or send a representative on my behalf.
The application for review was heard on 4 April 2016 (the ‘Second Review Hearing’). Ms Raj attended the Second Review Hearing on behalf of Mr Lockwood.
At the Second Review Hearing, Member Tyler refused Mr Lockwood’s application for review and made the following Orders:
1.The application for review is refused because the applicant for review failed to provide a reasonable excuse for not attending or being represented at the original hearing.
2.Order made 4 January 2016 shall remain in force.
At the Second Review Hearing, Member Tyler said words to the effect that he:
(a) was satisfied that Mr Lockwood had a reasonable excuse for failing to attend the 19 August 2015 Hearing;[14]
(b) was of the opinion that the Second Review Hearing came about as a consequence of Mr Lockwood’s review application dated 27 January 2016 which was in respect of the First Review Hearing;[15] and
(c) was not satisfied that the Plaintiff had a reasonable excuse for not attending or being represented at the First Review Hearing.[16]
[14]Further Affidavit of Anita Raj dated 15 June 2016, exhibit AR-1, CB 299.
[15]Ibid, CB 318.
[16]Ibid, CB 319.
Member Tyler considered the circumstances around the Plaintiff’s absence at the First Review Hearing, and said that:
(a) having regard to the history of the matter, it was reasonable for Mr Lockwood to foresee that Ecoliv Buildings would not consent to a request to adjourn the First Review Hearing;
(b) Mr Lockwood booked a flight ticket to Brisbane on 16 December 2015 in circumstances where he came to know about the listing date for the First Review Hearing on or about 10 December 2015;
(c) the Tribunal does not consider the closure of Mr Lockwood’s office on the date of the First Review Hearing to be a reasonable excuse; and
(d) Mr Lockwood could have and should have made alternate arrangements to attend the First Review Hearing, including taking a flight back to Melbourne to personally attend.
By originating motion filed 28 April 2016, Mr Lockwood applies to this Court for leave to appeal the decision of Member Tyler made at the Second Review Hearing.
The question of law and grounds of appeal in the proposed notice of appeal state:[17]
QUESTION OF LAW
This appeal is brought on the question of what constitutes a ‘hearing at which the order was made’ for the purposes of considering an application for review made under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
GROUNDS OF APPEAL
That the Member erred in determining what constituted a ‘hearing at which the order was made’ for the purposes of considering the appellant’s application for review made under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), filed 27 January 2016, by concluding that the ‘hearing’ was the hearing on 4 January 2016 and not the hearing on 19 August 2015.
[17]Affidavit of Anita Raj dated 31 May 2016, exhibit AR-15, CB 269.
This Application requires the Court to consider:
(a) whether leave to appeal should be granted to Mr Lockwood; and
(b) if leave is granted, whether the appeal should succeed.
Mr Lockwood’s Submissions
Mr Lockwood referred to the case of Department of Premier of Cabinet v Hulls [1999] VSCA 117 (‘Hulls’) in relation to leave to appeal to the Trial Division of the Supreme Court, in which it was stated that:
If leave is to be granted the applicant must at least identify a question of law … which is important to the substantive appeal’s succeeding or failing … the applicant will be required to show that there is a real or significant argument to be put that error exists.[18]
[18]Department of Premier of Cabinet v Hulls [1999] VSCA 117 [9]-[10] (‘Hulls’)
Mr Lockwood’s submissions as to the real or significant argument relate to both the question of the grant of leave, and the success of the appeal if leave is granted.
Question of Law
Mr Lockwood referred to VCAT Act s 148, which provides that a party may appeal on a question of law from an order of the Tribunal to the Trial Division of the Supreme Court, with leave of the Trial Division.
Mr Lockwood submits that Member Tyler erred in determining what constituted a ‘hearing at which the order was made’ for the purposes of considering Mr Lockwood’s application for review under s 120. The Member is said to have erred in concluding that the ‘hearing’ was the First Review Hearing and not the 19 August 2015 Hearing.
It is submitted that in applying s 120, the Tribunal erred when inquiring into Mr Lockwood’s conduct regarding a prior review hearing rather than Mr Lockwood’s conduct regarding the original, substantive hearing in the proceeding.
It was submitted that this error is a question of law for the purpose of VCAT Act s 148(1).
Mr Lockwood submitted that the word ‘hearing’ in s 120(1) is not defined, and in attempting to construe its meaning, it is appropriate to consider the word ‘hearing’ in the context of the section as a whole.
In this respect, it was submitted that s 120(4A)(a) is especially relevant. That section states that review is only available under s 120 where the Tribunal is satisfied that (among other factors) the applicant has a ‘reasonable case to argue in relation to the subject-matter of the order’.
It is said that an application under s 120 does not in itself possess any real ‘subject-matter’ within the meaning of that provision. Rather, the application is necessarily referable to the subject-matter of the underlying claim originally brought before the Tribunal, and the applicant’s arguments in respect of that claim. The ‘order’ to which the ‘subject-matter’ relates is therefore the order made at the original hearing, not that made in relation to an application under s 120.
It was submitted that VCAT procedures also suggest that ‘a hearing at which the order was made’ for the purpose of s 120(1) should be the original hearing because VCAT imposes a limit on the number of s 120 applications that may be made without leave. Counsel for Mr Lockwood referred to VCAT Rules 2008 r 4.19(2) which provides:
No more than one application may be made under section 120 of the Act by the same person in respect of the same matter without leave of the Tribunal.
Counsel for Mr Lockwood submitted that if s 120 were to apply to a review of an order made at the hearing of a previous s 120 application rather than to an order made at the original hearing, a party could theoretically make an unlimited number of s 120 applications. Each s 120 application would be a distinct ‘matter’ for the purposes of the application of r 4.19(2), dealing with the order made in the previous s 120 application. By making repeated applications for review without requiring leave, a proceeding could become unreasonably protracted and r 4.19(2) would, in effect, be defeated.
It was submitted that the better view is that the ‘matter’ referred to in r 4.19(2) is the order at the original hearing. An application under s 120 is intended to have a ‘look-through’ effect to seek review of the orders made at the original, substantive hearing.
It was further submitted that s 120 is to be ‘construed liberally’. Counsel for Mr Lockwood referred to Alesci v Salisbury [2002] VSC 475 which relates to the previous form of s 120. Counsel submitted that s 120 is designed to afford the applicant a second chance to present his or her case; it offers an indulgence. It was submitted that to construe the provision liberally in light of this purpose should be to interpret it as permitting a review of the original decision, rather than a prior s 120 determination.
Mr Lockwood submits that in addition to the real or significant argument to be made, three further factors support leave being granted:
(a) the question about the correct interpretation and application of s 120 bears directly upon the relief sought by Mr Lockwood, and his right to a review hearing as respondent in the VCAT proceeding, and ultimately upon his opportunity to present a defence in the VCAT Proceeding;
(b) if there is no correction to the Tribunal’s error, there would arguably be substantial injustice. It would be unjust for Mr Lockwood to be shut out from presenting his case in VCAT in circumstances where Member Tyler stated that he was satisfied that Mr Lockwood had a reasonable excuse for not attending the 19 August 2015 Hearing. Had the Member considered Mr Lockwood’s s 120 application in light of the 19 August 2015 hearing alone, Mr Lockwood would arguably have had the opportunity to address the Tribunal on matters pursuant to s 120(4)(a)(ii); and
(c) the question sought to be raised on appeal is of public importance. The application of s 120 does not arise infrequently and determination of the correct interpretation of the provision may assist in preventing a particular error becoming entrenched.
Ecoliv Buildings’ Submissions
Ecoliv Buildings’ Outline of Submissions dated 29 September 2016 was in the most part directed to whether Mr Lockwood ought be granted leave to appeal, rather than the question of the meaning of ‘hearing’ in VCAT Act s 120. In particular, the submissions focused on Mr Lockwood’s conduct, his alleged reasons for non-attendance and the ultimate merits of his defence.
I accept Mr Lockwood’s submission that the Court’s task is not to scrutinise the conduct of the parties, or consider the merits of the case, but to identify whether there has been an error of law in light of the application of s 120. Nonetheless, I will briefly set out Ecoliv Buildings’ submissions.
Ecoliv Buildings submitted that an applicant for leave to appeal is required to identify an error of law. In response to Mr Lockwood’s submission as to the proposed question of law, Ecoliv Buildings submitted that:
(a) the Member did not err in determining what constituted a ‘hearing at which the order was made’ for the purposes of s 120; and
(b) the First Review Hearing affirmed the decision made at the original hearing and, therefore, in effect it was the same decision.
Ecoliv Buildings submits that Member Tyler’s reference to the ‘original hearing’ in his orders of 4 April 2016 relates to the First Review Hearing on 4 January 2016, rather than the 19 August 2015 Hearing, on the following bases:
(a) Order 2 of the order made at the Second Review Hearing affirms the order made at the First Review Hearing;
(b) in the transcript of the Second Review Hearing, Member Tyler said:
This is a hearing in regard to an application for review and it’s a hearing only relating to the view (sic) review application…
I think this hearing today is in respect of the application relating to the hearing on 4 January [2016] and that’s where I think I need to turn my mind in relation to that, and whether the circumstances about The Plaintiff’s failure to appear at that hearing, or have somebody appear for him — whether that warrants a favourable decision in his case.
I accept that Member Tyler’s reference to the ‘original hearing’ is cured by reason of paragraph 49 herein. I also accept that Member Tyler’s orders of 4 April 2016 refer to the First Review Hearing on 4 January 2016, rather than the 19 August 2015 Hearing.
It was submitted that as Mr Lockwood did not appear, the original decision was affirmed, in light of VCAT Act s 51(5) which provides:
If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.
Counsel noted VCAT Act s 78, which refers to the conduct of a proceeding causing disadvantage. In particular, Counsel submitted that in light of s 78(2)(b)(i), the Tribunal had the power to determine the proceeding in favour of Ecoliv Buildings.
It was further submitted that Ecoliv Buildings has been disadvantaged by having to incur substantial legal costs to run a proceeding at VCAT.
It was submitted that Mr Lockwood wishes to exercise the opportunity to present a defence where:
(a) his case has no reasonable prospect of success;
(b) it was Mr Lockwood who failed to appear or arrange a representative twice in VCAT in circumstances where Mr Lockwood is an officer of the court, he chose to stay away from VCAT and caused unnecessary disadvantage to Ecoliv Buildings; and
(c) it is an indulgence of a court to grant leave to appeal, which would have the effect of setting aside the decision at the original hearing and should not be exercised.
As to reasonable prospect of success, Counsel for Ecoliv Buildings referred to Supreme Court Act1986 (Vic) s 14C which sets out the test of granting leave to appeal to the Court of Appeal as follows:
The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success.
It was submitted that the same test should be applied to the Trial Division in dealing with appeals from VCAT.
It was submitted that a substantial injustice will not result from the matter not being re-heard, as Mr Lockwood would ultimately be unsuccessful on the merits of the case in any event.
For the same reason, it was said that even if the Court was to find that the Tribunal did err by only considering Mr Lockwood’s reasons for not attending the First Review Hearing, it should not be given a further indulgence that would represent a fourth opportunity to be heard in VCAT.
Leave to appeal
Hulls sets out guidelines for the Trial Division regarding the granting of leave to hear an appeal from a VCAT decision.[19]
[19]Hulls [1999] VSCA 117 [16]. See also Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163 [29]–[34] (Warren CJ) (‘Myers’).
As stated above, Ecoliv Buildings submits that a different test should be applied, being that under Supreme Court Act 1986 s 14C. In oral submissions,[20] Counsel for Ecoliv Buildings referred to Metricon Homes Pty Ltd v Softley [2016] VSCA 60 (‘Metricon Homes’).
[20]T31 L9.
Metricon Homes involved review of a VCAT decision by the Vice President of VCAT. VCAT Act s 148(1)(a) states that the review of a VCAT decision by the President or Vice President of VCAT is to be referred to the Court of Appeal. In such instances, a potential conflict arises between the Hulls test and Supreme Court Act s 14C.
In this instance I am not reviewing a decision by the Vice President or President of VCAT. VCAT Act s 148(1)(b) applies, not s 148(1)(a). Counsel has not convinced me that the ‘reasonable prospect of success’ test should be used in determining whether to grant leave to appeal to the Trial Division.
There is nothing to indicate that the Hulls guidelines are to be displaced in this instance.
Granting leave
Phillips JA set out the following guidelines in Hulls:
When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave.[21]
[21]Hulls [1999] VSCA 117 [16].
I am satisfied that Mr Lockwood has identified a question of law that bears directly upon the relief sought in the appeal.
Further, I am of the view that Mr Lockwood’s question of law is of some importance to parties who fail to attend several VCAT hearings.
Phillips JA also sets out that:
it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[22]
[22]Ibid.
Finally, I accept that if the purported error of law did in fact occur, it would result in injustice to Mr Lockwood.
For the reasons I have set out above, I consider that there is sufficient doubt in relation, at least, to the meaning of ‘hearing’ in VCAT Act s 120(1) to justify the grant of leave.
Non-appearance in a VCAT hearing
Before analysing s 120(1), it is necessary to consider the overall context of the VCAT Act to gain a sense of how that Act operates.
VCAT Act s 100 states:
100 Method of conducting hearings
(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.
VCAT Act s 100 provides an option for a hearing to be conducted by video or telephone conference if VCAT thinks it appropriate. Alternatively, the proceeding can be determined on the papers with the consent of the parties.
If those options are not taken up, s 51(5) comes into effect. That provision makes very clear the importance of a party attending, or sending a representative to, a VCAT hearing. As previously stated, s 51(5) sets out that if an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the original decision. The Tribunal Member has no discretion in that respect; there is nothing in the VCAT Act to indicate that a Tribunal Member has discretion to ignore non-attendance at a review hearing.
A Tribunal Member does have discretion to allow review of an order under s 120. There is no question before me as to the exercise of the Member’s discretion, and it is not for me to examine the appropriateness of the exercise of the discretion.
Statutory interpretation of VCAT Act s 120
VCAT’s power to set aside an order or judgment depends on the proper construction of its statutory powers. Unlike the Supreme Court of Victoria, VCAT cannot resort to any inherent jurisdiction to recall its own judgment or order.
VCAT Act s 120(1) gives a party that did not appear at a VCAT hearing recourse to review any order made at that hearing. The main question for determination is whether Member Tyler was correct in considering that ‘hearing’ in s 120 refers to the review hearing on 4 January 2016, rather than original hearing on 19 August 2015.
As stated, Mr Lockwood submits that the word ‘hearing’ is not defined in the VCAT Act. He submits that ‘hearing’ in s 120(1) refers to the original hearing and does not include the review hearing.
Essentially, the Court must decide whether ‘the hearing’ in s 120(1) means:
(a) a hearing at which a person did not appear and was not represented and at which an order was made; or,
(b) the original hearing at which a person did not appear and was not represented and at which an order was made.
If, as Mr Lockwood submits, option B ought to be preferred, s 120(1) would become:
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 [original] hearing at which the order was made.
Barwick CJ said that the ‘meaning and operation’ of an expression within a provision ‘must be read with and accommodated to the rest of the section’.[23] It is necessary for s 120(1) to be read in context and viewed as a whole, under the heading ‘Re-opening an order on substantive grounds’.[24]
[23]Taylor v Public Service Board (1976) 137 CLR 208, 213.
[24]This heading can be taken into account in the interpretation analysis. See Interpretation of Legislation Act 1984 (Vic) s 36.
In Alecsi v Salisbury [2002] VSC 475, Bongiorno J stated that s 120 is a 'section which is to be construed liberally’.[25] His Honour stated this in the context of analysing what constituted a ‘reasonable excuse’ for not attending or being represented at a hearing.
[25]Alecsi v Salisbury [2002] VSC 475 [6].
In Guss v Aldy Corporation Pty Ltd [2008] VCAT 912, Senior Member Vassie referred to Bongiorno J’s judgment and stated that s 120 ‘affords an indulgence to a person against whom an order has been [made] in that person’s absence when that person has had a reasonable excuse for being absent’.[26] That is an accurate characterisation of s 120. As will be discussed below, ‘reasonable excuse’ is central to the operation of s 120.
[26]Guss v Aldy Corporation Pty Ltd [2008] VCAT 912 [26].
Section 120(4)(a)(i) sets out that VCAT may 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’.
Both ss 120(1) and 120(4)(a)(i) use the term ‘the hearing’. The meaning of ‘the hearing’ in s 120(4)(a)(i) may well help inform the meaning of ‘the hearing’ in s 120(1).
The Interpretation of Legislation Act 1984 (Vic) s 35(b) allows various documents, including explanatory memoranda, to be considered as aids to interpretation.
VCAT Act s 120(4)(a) was amended in 2014. The amendment stated:
1 Purposes
The main purposes of this Act are –
…
(b) to amend the Victorian Civil and Administrative Tribunal Act 1998 in relation to the service arrangements and the terms and conditions of appointment of non-judicial members and to enhance further the powers and efficiency of VCAT and to make related amendments to certain enabling enactments;[27]
…
[27]Court Legislation Miscellaneous Amendments Act 2014 (Vic) s 1 (emphasis added).
The amendment also inserted s 120(4A) (which will be discussed below). The Explanatory Memorandum for the Bill explains how s 120(4)(a) and s 120(4A) are to operate together:
The substituted section 120(4)(a) re-enacts the existing requirement that VCAT may hear and determine an application under section 120 of the VCAT Act if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at a hearing. The substituted section adds a further requirement, at new section 120(4)(a)(ii), namely that VCAT must also be satisfied that it is appropriate to hear and determine the application, having regard to the matters specified in new section 120(4A).[28]
[28]Court Legislation Miscellaneous Amendments Bill 2014 (Vic) Amended Print, Explanatory Memorandum dated 20 August 2014 (emphasis added).
The Explanatory Memorandum’s reference to ‘a hearing’ is instructive. It does not refer to ‘the hearing’ or ‘the original hearing’. It would seem that ‘the hearing’ in
s 120(4)(a) is a hearing at which the applicant does not attend or is not represented and at which an order is made.
There is nothing to indicate that ‘the hearing’ in s 120(1) should be assigned a different meaning to ‘the hearing’ in s 120(4)(a). The two provisions work together and should be read together to allow s 120 to function effectively.
Having considered the meaning of ‘the hearing’ within the context of s 120 as a whole, I turn now to considerations of statutory purpose.[29] A construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object.[30]
[29]Interpretation of Legislation Act 1984 (Vic) s 35(a).
[30]Ibid.
VCAT Act s 1 states that ‘the purpose of this Act is to establish a Victorian Civil and Administrative Tribunal’. That invites the question, why was VCAT established?
In Maguzzu v Business Licensing Authority [2001] VSC 5, Eames J looked to VCAT Act ss 97, 98(1)(a), 98(1)(c), 98(1)(d), 100(1), 100(2), 102(2), 102(3) and stated:
the Tribunal system created by the VCAT Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings, and its proceedings are of a more informal nature that those of a court.
Proceedings of Parliament can be referred to in determining the purpose of a statute.[31] In the second reading speech of the Victorian Civil and Administrative Tribunal Bill, the then-Attorney-General Mrs Jan Wade stated that the package of reforms gave effect to the government’s ‘commitment to provide Victorians with a modern, accessible, efficient and cost-effective civil justice system’.[32] The Attorney-General also stated that the establishment of VCAT would ‘improve access to justice for all Victorians including the business community’.[33]
[31]See Interpretation of Legislation Act 1984 (Vic) s 35(b)(i).
[32]Victoria, Parliamentary Debates, Legislative Assembly, 9 April 1998, 972 (Jan Wade, Attorney-General).
[33]Ibid 973.
Considering the above, as well as VCAT Act ss 4, 5 and 109, I find that the purpose of the VCAT Act is to establish VCAT in order to improve access to justice and to facilitate the cost-effective and timely review of decisions made under a legislative enactment.
In interpreting ‘the hearing’ for the purpose of s 120(1), a construction that would promote this purpose is to be preferred to a construction that would not.
In assessing whether or not the two competing interpretations set out above are consistent with the purpose of the VCAT Act, reference can be made to the possible consequences from those interpretations. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ stated that:
the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) 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.[34]
[34][1998] HCA 28 [78] (emphasis added).
Courts frequently make reference to the consequences of competing statutory interpretations to determine which interpretation best suits the purpose of an Act.[35] One scholar on statutory interpretation states that ‘interpretation by reference to consequences’ is now a ‘reasoning technique that is an aspect of the purposive approach’.[36]
[35]See Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107, 119 (Kenny J); Turner v George Weston Foods Ltd t/a Tip Top Bakeries (Newcastle) [2007] NSWCA 67 [56] (Campbell JA).
[36]R S Geddes, ‘Purpose and Context in Statutory Interpretation’ (2005) 2(1) University of New England Law Journal 5, 47.
I now turn to the consequences of interpretations A and B. Under Interpretation A, ‘the hearing’ in s 120(1) would mean a hearing at which a person did not appear and was not represented and at which the order was made. That hearing need not be the original hearing.
Suppose that a person fails to attend the original hearing, with a reasonable excuse for not doing so. That person could make a s 120 application. The person then fails to attend the review hearing, again having a reasonable excuse.
VCAT’s inquiry would then work in reverse chronological order. VCAT would have to be convinced that the applicant had a ‘reasonable excuse’ for not attending the review hearing. If convinced, VCAT would then consider whether the applicant had a ‘reasonable excuse’ for not attending the original hearing. Only then could the orders made at that original hearing be varied.
Under this interpretation, VCAT would have to be convinced that the applicant had a ‘reasonable excuse’ each and every time an applicant fails to attend a hearing. Each time an applicant does not attend or is not represented at a hearing, this would constitute a separate ‘hearing’ for the purposes of s 120.
It is necessary to refer here to s 120(3), which states that the VCAT Rules ‘may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal’. Unfortunately there is little, if any, guidance in the VCAT Act or the VCAT Rules as to how the Tribunal is to exercise this discretion.
Nonetheless, s 120(3) seems to indicate that there is not limitless scope for a person to review orders made at a hearing in their absence. Interpretation A is consistent with that design: it ensures that there can be no review where a person fails to attend any of the hearings without a reasonable excuse.
Alternatively, under Interpretation B, ‘the hearing’ in s 120(1) would mean the original hearing at which a person did not appear and was not represented and at which the order was made. If the person makes a s 120 application and then fails to appear at the review hearing, the latter failure would be of no consequence. The Tribunal Member would focus only on the original hearing. If the person had a reasonable excuse for his or her failure to attend on that occasion, it would be irrelevant whether or not that person also had a reasonable excuse for subsequent failures to attend.
There is a serious question whether such an interpretation could possibly be consistent with VCAT Act s 51(5), which requires a Tribunal Member to confirm the decision if a party does not attend. Nonetheless, I will proceed with the ‘constructional choice’ analysis.
As I have stated, the purpose of the VCAT Act is to improve access to justice and to facilitate the cost-effective and timely review of decisions made under a legislative enactment.
Arguably, Interpretation B would facilitate greater access to justice for the s 120 applicant, as it would allow the Tribunal to ignore non-attendance at the review hearing and focus on the original hearing. It is that hearing which concerns the substance of the dispute.
However, this greater access to justice for the s 120 applicant would come at the expense of the cost-effective and timely review of decisions. This is equally a part of the purpose of the VCAT Act.
The VCAT Act’s purpose is to improve access to justice and to facilitate the cost-effective and timely review of decisions made under a legislative enactment for all parties, not only one of the parties. To the extent that an interpretation is adopted which causes costly and untimely delays for one party, that interpretation does not promote the purpose of the Act.
Similarly, s 120(4A)(b) states that in determining whether it is appropriate to hear and determine the application, VCAT is to consider ‘any prejudice that may be caused to another party if the application is heard and determined’. It is not just the interests of the applicant for review which are to be considered, but all parties involved in the VCAT proceeding.
The vice in Mr Lockwood’s support for Interpretation B can be seen in the current facts before this Court.
Mr Lockwood failed to attend two hearings. For the purpose of this analysis, I will assume he had a ‘reasonable excuse’ for the non-attendance at the original hearing on 19 August 2015. Ecoliv Buildings attended the hearing on that day. Mr Lockwood then made an application for review under s 120 and a hearing was fixed for 4 January 2016. Mr Lockwood failed to attend that hearing and the evidence is that he did so knowingly, despite a number of adjournments and Member Campana’s refusal to adjourn the 4 January 2016 hearing date.
Ecoliv Buildings attended on 4 January 2016. Mr Lockwood then made another application for a review hearing, which was granted. The Second Review Hearing was heard on 4 April 2016. As noted, Mr Lockwood was represented. Ecoliv Buildings attended and Mr Lockwood’s application for review was denied.
If I accept Mr Lockwood’s analysis, there is no incentive to comply with earlier orders. The Tribunal would be expected to completely disregard Mr Lockwood’s failure to attend on 4 January 2016 pursuant to a VCAT Order. The original hearing was on 19 August 2015. There is a delay of almost nine months before the Second Review Hearing was heard. This does not promote the purposes of the Act.
Further, Mr Lockwood’s analysis provides a platform for a party to breach an order with no real consequence. Mr Lockwood’s conduct ¾ that is, his intentional refusal to obey VCAT’s Order ¾ flouts VCAT’s authority and necessarily constitutes an interference in the administration of justice.
Even if VCAT were to make a costs order in due course in favour of Ecoliv Buildings for the attendances, it does not cure the delay or the inefficiency caused by Mr Lockwood’s blatant disregard of the timetabling of the matter for his own convenience and benefit.
The effect of Interpretation A is this: if a party does not attend the most recent hearing, VCAT must be convinced that there is a ‘reasonable excuse’ for non-attendance. If VCAT is convinced there is a ‘reasonable excuse’, the proceeding is re-opened and the s 120 applicant’s access to justice continues. Alternatively, if VCAT is not convinced that there is a ‘reasonable excuse’ for non-attendance, the proceeding is not re-opened. The applicant, in effect, forfeits his or her access to justice because he or she did not have a ‘reasonable excuse’ for not attending and not being represented at the most recent hearing. The proceeding comes to an end in a cost-effective and timely manner.
The effect of Interpretation B, on the other hand, is to allow multiple applications for review to be instituted, irrespective of whether an applicant has a reasonable excuse for not attending review hearings. This causes inefficiency and expense, and denies the other party a timely resolution of the issue.
Interpretation A is to be preferred as it is promotes the purpose of the VCAT Act, balancing access to justice for all parties with the cost-effective and timely review of decisions. Interpretation B fails to promote the object or purpose of the VCAT Act, as it fails to promote ‘access to justice’ for the party that attended the hearing, and it fails to promote the cost-effective and timely review of decisions.
Section 120 evinces an intention to allow review where there is a reasonable excuse for non-attendance. It does not indicate any intention of allowing review where there is no such excuse.
One further point ought to be considered here. It could be said that the concern over repeated delays could be dealt with by s 120(3) and r 4.19(2) even if Interpretation B is adopted. Use of those provisions would allow for an end to repeated applications for review. If Interpretation A is adopted, what use do these provisions serve?
The correct answer is that these provisions allow the Tribunal to prevent continued review after multiple applications under s 120 even if the applicant had a reasonable excuse for not attending each hearing. Eventually, the Act’s stated aim of achieving cost-effective and timely resolution of disputes must be brought to fruition. Section 120(3) and r 4.19(2) achieve that.
As such, I find that ‘the hearing’ for the purposes of VCAT Act s 120(1) means ‘a hearing at which a person did not appear and was not represented and at which the order was made’. This includes a review hearing and is not confined to the original hearing.
‘Subject-matter of the order’
Mr Lockwood also highlighted the use of ‘subject-matter of the order’ in VCAT Act s 120(4A). Counsel for Mr Lockwood submitted that an application under s 120 does not possess any real ‘subject-matter’, as the application for review is necessarily referable to the subject-matter of the underlying claim considered in the original hearing.
With respect, that would be the case if s 120(4A) referred to the ‘subject-matter of the proceeding’. However, it refers to the ‘subject-matter of the order’. Which ‘order’? Section 120(4A)(a) refers to s 120(4)(a)(ii). Sections 120(4)(a)(ii) and 120(4)(a)(i) are expressed conjunctively. Section 120(4)(a)(i) refers to ‘the hearing’ at which the applicant did not attend and was not represented. Putting this all together, s 120(4A) refers to the ‘subject-matter’ of the order made at the hearing at which the applicant did not attend or was not represented. As determined above, that is not limited to the original hearing.
What is the ‘subject-matter’ of an order? The term is not defined in the VCAT Act. In the absence of an express definition, we can refer to the term’s ‘ordinary and natural meaning’.[37]
[37]Lillas & Loel Lawyers Pty Ltd v Celona [2014] VSCA 19 [26].
The Macquarie Dictionary defines ‘subject matter’ as:
noun
1. the substance of a discourse, book, writing, or the like, as distinguished from its form or style.
2. the matter which is subject to some action or operation.
3. the matter out of which a thing is formed.
It would appear that the ordinary and natural meaning of ‘subject matter’ is similar to ‘substance’.
In this case, the Order made by Member Tyler on 4 January 2016 stated:
1. The application for review is refused because the applicant for review did not attend the hearing of this matter.
2. Order made 19 August 2015 shall remain in force.
It would appear that the ‘subject-matter’ of the order is the application for review, the confirmation of the Order made on 19 August 2015 and the applicant’s failure to attend the review hearing on 4 January 2016.
If Mr Lockwood made an application for review under s 120 after this Order, a VCAT Member would turn his or her mind to whether Mr Lockwood had a reasonable excuse for non-attendance at the review hearing on 4 January 2016.
There is nothing in the VCAT Act or the explanatory memoranda to indicate that ‘subject-matter’ in s 120(4A) is to be construed in the manner suggested by Mr Lockwood.
VCAT Rules
The VCAT Rules are made under VCAT Act s 157. The VCAT Rules are statutory rules for the purposes of the Subordinate Legislation Act 1994 (Vic).[38] Unless contrary intention appears, expressions used in the VCAT Rules are to be given the same meaning as they have in the VCAT Act. [39]
[38]Subordinate Legislation Act 1994 (Vic) s 3. See definition of ‘statutory rule’.
[39]See Interpretation of Legislation Act (Vic) s 23.
Rule 4.19(2) provides that ‘[n]o more than one application may be made under section 120 of the Act by the same person in respect of the same matter without leave of the Tribunal’.
As previously stated, counsel for Mr Lockwood submits that the reference to the same ‘matter’ in this rule is a reference to the subject matter or order of the original hearing. Read in this way, r 4.19(2) would become:
No more than one application may be made under section 120 of the Act by the same person in respect of the [order at the original hearing] without leave of the Tribunal.
This argument seeks to find legislative recognition of the ability to make multiple review orders in relation to the original hearing. The argument must fail.
There is nothing in the VCAT Rules or the VCAT Act (including s 120(3)) to indicate that ‘matter’ in r 4.19(2) is to be interpreted as meaning ‘the order at the original hearing’.
In any event, even if Mr Lockwood’s interpretation was accepted, r 4.19(2) would merely indicate that a person must seek leave from VCAT to make more than one
s 120 application regarding the order at the original hearing. This does not, however, defeat the need for a ‘reverse chronological’ approach to review, as outlined earlier, in order to be able to seek a review of the original order. That is a requirement imposed by the Act and is not altered by the Rules.
Mr Lockwood’s proposed ‘look-through’ effect
Counsel for Mr Lockwood also submits that a s 120 application is intended to have a ‘look-through’ effect, enabling review of an order made at the original, substantive hearing in the proceeding.
This would be more likely if Mr Lockwood was correct in saying that the orders made at the review hearings had no subject-matter of their own, but referred only to the substance of the original hearing. I have rejected this argument earlier in these reasons.
The effect of this submission is that Member Tyler should have ignored the fact that Mr Lockwood did not attend the First Review Hearing. Rather, Member Tyler should have ‘looked-through’ to the original hearing on 19 August 2015.
The practical effect of such a reading of s 120 is that a party would not be obliged to appear at a review hearing. A party could fail to attend a review hearing and then ask the Tribunal Member to ‘look-through’ to the original hearing. I cannot see how that would be in keeping with the VCAT Act’s purpose.
As I have stated, s 120(4) makes it clear that VCAT cannot ignore non-attendance by a party at a hearing. VCAT must be convinced that a party had a ‘reasonable excuse’ for not attending or not being represented at a hearing before it can consider a s 120 application. There is nothing to indicate that the legislative purpose of s 120 is to have a ‘look-through’ effect.
Conclusion
VCAT Act s 120(4) requires the Tribunal to be convinced that a person had a ‘reasonable excuse’ each and every time that that person fails to attend or is not represented at a hearing.
At the Second Review Hearing on 4 April 2016, Member Tyler held that Mr Lockwood did not have a ‘reasonable excuse’ for not attending and not being represented at the First Review Hearing on 4 January 2016. In the hearing before me, counsel did not argue that Mr Lockwood had a ‘reasonable excuse’ for not attending the First Review Hearing.
I do not find error in Member Tyler’s Order dated 4 April 2016. For the reasons set out above the appeal should be dismissed.
Subject to hearing any submissions, I consider the appropriate order as to costs is that Mr Lockwood pay Ecoliv Buildings’ cost of and incidental to the proceeding on the standard basis.
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