Muscatello v Check Inn Systems Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05745

LISA MUSCATELLO t/as APARTMENTS MELBOURNE DOMAIN (ABN 53 233 723 748)	Applicant
v
CHECK INN SYSTEMS PTY LTD	Respondent

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2024
DATE OF JUDGMENT:	4 December 2024
CASE MAY BE CITED AS:	Muscatello v Check Inn Systems Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 745

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ADMINISTRATIVE LAW – Application for leave to appeal from Victorian Civil and Administrative Tribunal – Orders made pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 refusing to reopen orders made at an earlier hearing at which the applicant had not appeared – No appearance by the applicant at the hearing of the reopening application – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	By its director, Mr Tusak

HER HONOUR:

The Applicant in this case, Lisa Muscatello, and the Respondent, Check Inn Systems Pty Ltd, have been involved in a long running dispute relating to services and equipment relating to an automated check in system provided by Check Inn Systems to Ms Muscatello in connection with her apartment rental business trading as Apartments Domain Melbourne in 2018. Check Inn Systems brought a claim in the Victorian Civil and Administrative Tribunal in July 2018 against Ms Muscatello for payment of $17,333.50 said to be outstanding for the services.[1] Ms Muscatello brought a claim in the Tribunal in November 2018 against Check Inn Systems alleging that the equipment was defective and related claims.[2]
[1]Tribunal proceeding C4906/2018. See description of the claim in orders made by Member Calabro, 2 August 2021, [3].
[2]Tribunal proceeding C8464/2018.

By orders made on 7 June 2022, the Tribunal ordered Ms Muscatello to pay Check Inn Systems $11,978 and dismissed Ms Muscatello’s counterclaim (7 June 2022 Orders). The orders were made at a hearing attended by Mr Stephen Tusak, director of Check Inn Systems, but which Ms Muscatello did not attend.

Ms Muscatello applied to the Tribunal to have the application ‘reopened’ pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) (Section 120 Application). That application was set down for hearing, with provision made for evidence to be filed in advance of the hearing. The hearing was attended by Mr Tusak appearing for Check Inn Systems, but Ms Muscatello did not attend. Senior Member Martin heard submissions for Check Inn Systems on the Section 120 Application and dismissed the application for review and confirmed the 7 June 2022 order (Section 120 Order). The Senior Member dismissed the reopening application primarily on the basis that Ms Muscatello failed to attend the hearing. He also concluded that even had she attended, the lengthy delays in the proceeding and the inadequacies in the evidence provided by Ms Muscatello to substantiate the ‘medical emergency’ that she had identified as the reason for not attending the 7 June 2022 hearing, both counted strongly against the grant of leave to reopen.

Ms Muscatello now seeks leave to appeal the Section 120 Order, pursuant to s 148 of the VCAT Act.

The statutory provisions relevant to an application for leave to appeal

Section 148(1) of the VCAT Act provides, relevantly, that ‘a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding’.

Section 148(2A) provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

The application for leave must be made within 28 days after the day of the order of the Tribunal, unless the rules of the Supreme Court otherwise provide.[3] The Court may extend that time.[4]
[3]VCAT Act, s 148(2).
[4]VCAT Act, s 148(5).

Ms Muscatello’s Notice of Appeal stated that an extension of time was not required ‘as submission of appeal was made within 28 days’. However, her Notice of Appeal was filed on 22 November 2023, over two months after the relevant order made by the Tribunal on 26 September 2023.[5] Ms Muscatello should have been on notice of this by the time of the hearing as it was expressly noted, in orders made by McCann JR on 13 March 2024, and again in orders made on 12 September 2024 and 8 November 2024 by Lorenz JR, that the application was an application for an extension of time and for leave to appeal.
[5]The Notice of Appeal referred to the order as having been made by Senior Member P Martin on 29 September 2023, however this was, having regard to the orders provided by the parties in their evidence, evidently an error and intended to be a reference to the orders made on 26 September 2023.

Leave to Mr Tusak to represent Check Inn Systems

Mr Tusak applied for leave to represent Check Inn Systems in the proceedings in this Court. He supported the application with an affidavit.[6] Having regard to the affidavit I granted him leave to represent the company on the following basis:[7]
[6]Affidavit of Stephen Tusak, affirmed and filed 6 March 2024.
[7]Taking into account the considerations identified by the Court of Appeal in Hoser v Pelly [2023] VSCA 14, [10].

(a) Mr Tusak was, according to an Australian Securities and Investments Commission report, one of two directors of the company;

(b) the company had limited revenue and it would be possible that legal expenses would exceed the quantum of the monetary order that the Tribunal had made and that Check Inn Systems was seeking to enforce;

(c) Mr Tusak had represented the company in VCAT and had been granted leave to represent the company in directions hearings in this Court,[8] and

(d) I considered it would be possible, having regard to the limited issues raised by the application for leave to appeal, for Mr Tusak to represent the company in an orderly and responsible way without a solicitor.

[8]On 13 and 25 March, 4 April, and 17 July 2024.

The application for leave
The Tribunal’s Reasons for Decision

The procedural history of the Tribunal proceeding was complex and lengthy. Insofar as some of the procedural history was in evidence, that has been recorded in the Annexure to these reasons, as it has some relevance in view of the Tribunal’s findings in the Section 120 Order that there had been ‘exceptional delay’ in the proceedings.

On 26 September 2023, Senior Member Martin made orders after the hearing of the application which was not attended by Ms Muscatello. In the ‘Background and Findings’ section of the Senior Member’s order, he sets out what occurred on the day of the hearing:

1.This is a dual-proceeding involving an original C4906/2018 claim by Check Inn Systems Pty Ltd against Lisa Muscatello. Over time, a counter-claim C8464/2018 was initiated, where Ms Muscatello was claiming against Check Inn Systems Pty Ltd.
2.This matter has an exceptionally large VCAT history, going back over five years to 2018. Overall, the VCAT file has close to three inches of paperwork in it.
3.Focusing more on recent developments, on 7 June 2022 the Tribunal made certain orders flowing from the fact that Ms Muscatello did not attend the scheduled hearing on that date. Notably, with the earlier proceeding C4906/2018, Ms Muscatello was ordered to pay Check Inn Systems Pty Ltd $11,978.00, and the C8464/2018 proceeding was dismissed.
4.Ms Muscatello then made a ‘re-opening’ application under section 120 of the Victorian Civil and Administrative Tribunal Act 1998. Ms Muscatello lodged certain written information in support of her re-opening application, whereas Check Inn Systems Pty Ltd lodged a written submission opposing same.
5.At least after the adjournment of the 8 June 2023 hearing, this re-opening application came before me at the scheduled hearing on 26 September 2023 at 9:30am. Mr Tusak was in attendance on behalf of Check Inn Systems Pty Ltd but there was no appearance by Ms Muscatello. The bench clerk checked she was not outside and the hearing started at more like 9:40am to allow extra time in case Ms Muscatello was running late.
6.When the hearing started properly, Mr Tusak provided a summary of the history of this matter, plus I answered some queries from him.
7.I checked again after 10:00am and there was still no appearance by Ms Muscatello in the hearing room or outside it.
8.Ms Muscatello was notified of the date of the 26 September 2023 ‘re-opening’ hearing and the onus was on her (in bringing the re-opening application) to attend the 26 September 2023 hearing to act on that application.
9.With there still being no appearance by Ms Muscatello in excess of 30 minutes after the scheduled hearing start time, her ‘re-opening’ application accordingly was dismissed and the Tribunals orders of 7 June 2022 are affirmed. In other words, to avoid any doubt, Ms Muscatello must now immediately comply with the Tribunal orders of 7 June 2022.
10.The failure of Ms Muscatello to attend the scheduled 26 September 2023 hearing is in itself fatal to her ‘re-opening’ application.

The Tribunal member, having identified Ms Muscatello’s failure to appear to put her case as to why the matter should be reopened as the reason why he would dismiss it, also made the following observations:

11.However out of completeness, I can indicate that even if Ms Muscatello had attended the 26 September 2023 hearing, the following factors count extremely strongly against any re-opening of the Tribunal orders of 7 June 2022:
(a)The exceptional delay already experienced by Check Inn Systems Pty Ltd, where its C4906/2018 claim first came to VCAT about five years ago.
(b)The purported ‘medical certificate’ from Associate Professor Gautam Vaddadi (which Ms Muscatello relies on) being provided in an email form, which is completely different to the typical format of a stand alone ‘certificate’ provided by doctors. Notably, a conventional medical certificate typically has the proper ‘letterhead’ and qualifications/contact details of the relevant doctor at the top of the page.
(c)Ms Muscatello herself describing her medical reason for not attending the 7 June 2022 hearing as a ‘medical emergency’, yet curiously the purported ‘medical certificate’ which Ms Muscatello has supplied is an email dated over a week before the 7 June 2022 scheduled hearing i.e. this email is dated 30 May 2023.

12.I also note that the summary orally provided in sworn form by Mr Tusak at the 26 September 2023 hearing before me includes his allegation that he has proof that Ms Muscatello had obtained a ‘medical certificate’ fraudulently.
13.As a postscript to the above, in the course of preparing these written orders, I have become aware of the following. In the situation where the in-person scheduled re-opening hearing before me on 26 September 2023 was fully completed by approximately 10:15am, the Tribunal at 11:11am that day received an email from an unknown person (Lynne Bekhor) which reads as follows – “My daughter Lisa Muscatello was in a major car accident on the way to the hearing this morning. She is lucky to be alive. She will need some time to recover. Are you able to re-schedule the hearing please?”
14.For the removal of any doubt, the 26 September 2023 hearing before me could not be adjourned when the email only was received by the Tribunal after the hearing was completed. However, in any case, in practice the Tribunal can give this email no real weight when:
(a)It was sent by a person the Tribunal cannot identify, using an email address the Tribunal is not familiar with.
(b)No evidence was provided to establish that Lynne Bekhor is the respondent’s mother.
(c)No evidence was provided that the respondent was actually in a road accident.
(d)No evidence was forthcoming that that respondent had suffered serious injuries.

The Senior Member, having recorded those findings, ordered:

The application for review is dismissed.
The order dated 7 June 2022 is confirmed.

It is these orders that are the subject of Ms Muscatello’s application for leave to appeal.

The Notice of Appeal

Ms Muscatello’s Notice of Appeal identified 14 questions of law as follows:

1.Did Tribunal erred in dismissing Ms Muscatello’s ‘re-opening’ application solely based on her non-appearance at the scheduled hearing?
2.Additionally did the Tribunal adequately considering the circumstances leading to her absence?
3.Did the Tribunal, in affirming the orders of June 7, 2022, failed to sufficiently weigh the factors presented in support of Ms Muscatello’s ‘re-opening’ application, such the order dated on the 7^th of June 2022 provided no reason on why her matter was dismissed and furthermore there is no transcript to provide further insight?
4.Did Tribunal adequate assessed the case and its history?
5.Did the Tribunal’s consideration of the exceptional delay in the proceedings adequately accounted for any extenuating circumstances that may have contributed to the prolonged duration of the case?
6.Did the Tribunal properly evaluated the history of the matter proved through a summary of Mr Tusak which would be of a bias nature?
7.Did the Tribunal consider the extended duration has been significantly influenced by the unprecedented challenges posed by the COVID-19 pandemic?
8.Did the Tribunal consider the clerical errors attributed to VCAT procedures? The Review hearing dated 8^th of June made a clerical error and through listing C4906/2018 and not C8464/2018.
9.Did the Tribunal consider the entire case such as the order dated 14^th of May 2020 that state proceedings were not suitable for teleconferences?
10.Did the Tribunal consider order dated 11^th of May 2023 states that Ms Muscatello failed to advise the Tribunal of her new address however and email dated Friday, 8 July 2022 1:27 PM shows the email had been updated with the tribunal?
11.Did Tribunal properly assessed summary orally provided in sworn form by Mr Tusak at the 26 September 2023 hearing allegation that he has proof that Ms Muscatello had obtained a ‘medical certificate’ fraudulently, yet he did not provide such information?
12.Did the Tribunals failure to provide the transcripts requested since the 8^th of May 2023 within a reasonable time frame, leading to a denial of the right to a fair hearing?
13.Were the Tribunal procedures for handling transcripts requests followed appropriately considering the court transcripts services are all at full capacity until Feb 2024?
14.Did the Tribunal take into consideration the issues in obtaining transcripts impact Ms Muscatello’s ability to present her case?

Ms Muscatello identified the following 6 proposed grounds of appeal:

The Tribunal failed to consider the factors supporting the re-opening of the case, including the absence of reasons in the June 7, 2022 dismissal order and the unavailability of a transcript to enhance understanding of the decision making process.
The tribunal failed to consider Ms Muscatello claim that she was sold a non-functional machine.
The Tribunal failed to assess the extensive case history spanning five years, characterised by a substantial file reflecting the intricate and comprehensive nature of the proceedings. Additionally, the Tribunal did not account mitigating factors, including challenges posed by the COVID-19 outbreak and administrative errors related to VCAT.
The Tribunal failed to consider the ramifications of clerical errors and discrepancies in orders related to teleconference proceedings and the notification of Ms Muscatello’s email address?
The Tribunal seemingly sided with the fraud allegations despite a perceived inadequacy in the assessment of the information provided by Mr. Tusak during the hearing. The mention of “without evidence” implies a discrepancy between the Tribunal’s decision and the standard expectation of supporting claims with proper evidence or proof.
The grounds presented collectively question the fairness, comprehensiveness, and constitutionality of the Tribunals’ decision, thereby establishing a foundation for reconsideration or review.

The Applicant’s submissions and evidence on the application for leave to appeal.

Ms Muscatello filed three affidavits in support of her application for leave to appeal, dated 29 April 2023, 22 November 2023 and 15 November 2024. These consisted largely of exhibiting various Tribunal orders and documents, with some limited explanations of the significance of the documents. Ms Muscatello also filed two sets of submissions, the first accompanied by a bundle of documents.[9] Although orders had been made on several occasions for the filing of evidence by way of affidavit,[10] I permitted Ms Muscatello to refer to those documents at the hearing.[11]
[9]The first dated 24 May 2024 and filed 27 May 2024m, and the second dated 8 August 2024.
[10]Orders of McCann JR, 13 March 2023, [3]; Orders of Lorenz JR, 12 September 2024, [1].
[11]One relevant document which was not in evidence was Ms Muscatello’s application under s 120 for the reopening of the orders made on 7 June 2022. As the orders of Senior Member Moraitis of 11 May 2023, which were in evidence, referred to an application having been made by email on 20 September 2022, I arranged for my associates to email Ms Muscatello two days before the hearing and on the morning of the hearing to request that the email containing the section 120 application be provided to the Court. Ms Muscatello did not provide that document prior to or at the hearing. Both she and Mr Tusak were also unable to locate the email during the hearing when given a further opportunity to look for it.

Ms Muscatello’s submissions were largely directed to the merit of her substantive claims before the Tribunal. With respect to the Section 120 Order, she made the following submissions:

1. COVID19 Impact: The Tribunal's focus on the history of delays and the implications for Check Inn Systems Pty Ltd may have led to a skewed perception. While it acknowledges the "exceptional delay" experienced by Check Inn Systems Pty Ltd, it appears to attribute this solely to Ms Muscatello's actions or inactions. It is essential to recognise that the COVID19 pandemic likely played a significant role in these delays. Court systems worldwide, including VCAT, experienced unprecedented disruptions due to lockdowns, restricted operations, and a backlog of cases.
Therefore, attributing the delays solely to one does not accurately reflect the complex realities of the situation.
2. Fair Consideration of Circumstances: The Tribunal's dismissal of Ms Muscatello's reopening application and affirmation of the previous orders seem to overlook the possibility of genuine extenuating circumstances. While the member acknowledges Ms Muscatello's assertion of a medical emergency, they express scepticism of her opinion and not one of law.
3. Bias or Imbalance in Decision Making: The Tribunal's apparent alignment with Mr. Tusak's perspective, as evidenced by the member's acceptance of his allegations, raises concerns about impartiality. The Tribunal should maintain neutrality and independently assess the evidence presented by both parties. Failure to do so could result in an unfair advantage for one party and undermine the integrity of the judicial process.
4. The Tribunal's disregard for the email received after the hearing, purportedly from Ms Muscatello's mother, raises questions about its willingness to consider new evidence or extenuating circumstances.

While Tribunal did not seem to grasp and have a thorough understanding of certain aspects of the case, such as its history and procedural details, there are indications of potential oversight or bias, particularly regarding the impact of COVID19 and the fair consideration of extenuating circumstances. A more balanced and nuanced approach, considering all relevant factors and evidence, would be essential to ensure a just outcome.

The words above are italicised because it is relevant, for reasons addressed further below, to note Ms Muscatello’s qualified references to an ‘assertion of a medical emergency’ rather than to a medical emergency, and to the email ‘purportedly’ from Ms Muscatello’s mother. Ms Muscatello did not, in support of her application for leave to appeal, tender any evidence to the effect that she had in fact experienced a medical emergency which prevented her from attending either the 7 June 2022 hearing or the rehearing application on 26 September 2023; nor that the email sent to the Tribunal referred to in Senior Member Martin’s reasons was genuine.

At the hearing, Ms Muscatello made submissions as to the difficulties she had experienced in obtaining transcript and other issues arising in the course of the Tribunal proceeding.

Ms Muscatello submitted more generally that it was unjust for the Tribunal not to have taken into account that some of the lengthy period between the commencement of the proceeding and the hearing on 26 September 2023 had been attributable not to her conduct but to delays caused by COVID-19 measures including lockdowns, by clerical error on the part of VCAT which had resulted in the hearing on 8 June 2023 being listed for one proceeding only, and the way in which Mr Tusak had provided documents relevant to the Tribunal proceeding to her during the COVID-19 pandemic measures.

The Respondent’s evidence and submissions on the application for leave to appeal

Mr Tusak filed an affidavit dated 22 March 2024. Mr Tusak’s affidavit stated that the Supreme Court application should be rejected for reasons including that:

1. The application for review was out of time.
2.There is no evidence that the judgement made by VCAT was in any way flawed or prejudiced.

The affidavit also recounted ‘supplementary reasons that strongly support the rejection of the review application’, including various matters relating to the history of the proceeding. Most relevantly to the application for review of the Section 120 Order, the Affidavit states:

E.Failed to attend a VCAT hearing on 7 /06/2022 in which judgment was made in my favour
…
GLodged appeal document with VCAT on 20/09/2022 – three and a half months out of date incorrectly allowed by VCAT based on evidence of change of email address. Second example of same excuse used.
HClaiming holidays and medical issues as excuses for delays in appearance
I.Falsifying medical evidence as per attached evidence.
…

Most importantly Muscatello was warned in writing by Christopher Temperley, Registrar on 10^th July 2023 that “if a party fails to attend the review hearing (on 26^th September 2023) will result in the review hearing will proceed in the absence of that party and orders will still be made”.

Check Inn Systems also filed submissions disputing Ms Muscatello’s claims as to the deficiencies in the equipment.[12]
[12]Respondent’s Submissions, 26 July 2024.

The application for an extension of time to seek leave to appeal

There is first a question as to whether an extension of time in which to make the application for leave to appeal should be granted.

Section 148(2) of the VCAT Act provides:

An application for leave to appeal to the Trial Division of the Supreme Court must be made –
(a)within 28 days after the day of the order of the Tribunal, unless the rules of the Supreme Court otherwise provide; and

(b) in accordance with the rules of the Supreme Court.

The orders from which Ms Muscatello sought leave to appeal were made on 26 September 2023. Her application for leave to appeal was filed on 22 November 2023, so that the application was some 57 days after the orders were made.

The principles guiding the Court’s discretion as to the grant of an extension of time are well established. They are, most relevantly for present purposes:

(a) the purpose of the discretion is to ensure that justice can be done between the parties.[13]
[13]Jackamarra v Krakouer (1998) 195 CLR 516, 539-540 (Kirby J); Brandwill Holdings Pty Ltd v Jonson & Ors [2014] VSC 356, [12(b)] (Emerton J).

(b) Factors relevant to the exercise of the discretion are the length of the delay in applying for leave to appeal and the reasons for delay, whether there is an arguable case and whether there is any prejudice to the respondent to the proposed appeal if time is extended.[14]
[14]Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106, [15] (Nettle and Neave JJA); Muto v Secretary to the Department of Planning and Community Development (2013) 38 VR 293, 296 [13]; Jackamarra v Krakouer (1998) 195 CLR 516, 520-521 (Brennan CJ and McHugh J).

(c) The longer the period of delay, the more compelling the explanation for the delay is required to be.[15]

(d) The applicant for the extension of time has the burden of establishing that it should be granted.[16]

[15]Brandwill [2014] VSC 356, [13].

[16]Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J); Brandwill [2014] VSC 356, [12(e)]; Edwards v Transport Accident Commission [2013] VSC 557, [37] (Derham AsJ).

Ms Muscatello’s evidence and written submissions did not address the reasons why her application for leave to appeal was filed late on 22 November 2023. When asked about the reasons for delay she submitted that she had understood that the appeal was made within time, and also that she had to resubmit the Notice of Appeal. She said that she had made a mistake in filing it and had had to refile.

Even had Ms Muscatello not appreciated that the VCAT Act provides by s 148 a time limit for applying for leave to appeal of 28 days from the date of the Tribunal order, it did become clear in the interlocutory stages of this application that an extension of time was required. Orders had been made in March 2022 referring to ‘the applicant’s application for an extension of time, for leave to appeal and, if granted, the appeal’ being listed.[17] It would have been reasonable to expect some evidence to be given in the evidence in support of the application to explain the delay.
[17]Orders of Judicial Registrar McCann, 13 March 2024, [2].

However, I accept that mistakes can be made, in particular by a self-represented litigant. The delay was not lengthy, and Check Inn Systems had not raised a specific complaint about the delay in filing the notice of appeal (as opposed to the issues raised about the late filing of the Section 120 Application). Importantly, it was not apparent that the delay had caused particular prejudice to Check Inn Systems. Although the merit of the application for leave was not readily apparent I accepted that it would be a significant step to refuse to permit Ms Muscatello to address the reasons for her application for leave from the orders refusing her application for review which were made in her absence.

In these circumstances I consider it is appropriate to grant the extension of time to make the application for leave.

Statutory provisions and authority relevant to the issues raised by the application

Section 120 of the VCAT Act provides:

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.
(2)An application under subsection (1) is to be made in accordance with, and within the time limits specified by, the rules.
(3)The 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.

(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.

(4B)The Tribunal may hear and determine an application under this section despite subsection (4A)(b) if the Tribunal is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs under section 109 or an order for reimbursement of fees under section 115B or both.
(4C)In deciding to hear and determine an application under this section the Tribunal may require the applicant to give any undertaking as to costs or damages that the Tribunal considers appropriate.

(5) Nothing in Division 3 of Part 3 applies to a review under this section.

What must be established in an application for leave to appeal against an order made by the Tribunal under s 120 of the VCAT Act was considered by Keogh J in Hunter, Byron & Co v AC Home Design Pty Ltd, in a case where the Applicant sought judicial review of a determination of the Tribunal to dismiss an application for review under s 120.[18] The Tribunal had found that notice of the hearing had been sent to the address of the applicant for review. However the applicant submitted that they should have been entitled to a reopening of the primary orders because they did not get ‘proper’ or actual notice, and that this was required by s 120(4)(a)(i). Justice Keogh observed:[19]

To succeed with an application under s 120 of the Act to have the primary order revoked, an applicant must first establish that they had a reasonable excuse for not attending or being represented at the hearing. The application for review of the primary order fell at this first hurdle.
The applicant’s construction of s 120(4)(a)(i) of the Act is not supported by the natural and ordinary meaning of the words of the legislation, or by the broader context of the Act. The question posed by the provision is whether the applicants had a reasonable excuse for not attending the hearing, not whether they received ‘proper’ or actual notice of the hearing. This is consistent with provisions in the Act dealing with service of documents, including notice of a hearing, being by ordinary post or email. Concepts of ‘proper’ and actual notice are not found in the Act.
There may be a good basis for focusing on the reasonableness of an excuse for not attending or being represented at a hearing, rather than the question of notice. For example, an applicant who had actual notice of a hearing may be found to have a reasonable excuse if they were impecunious and could not afford representation and were unable to attend a hearing because of serious ill health; or an applicant who had actual notice, but was confused on an objectively reasonable basis about the requirement to attend may be found to have a reasonable excuse.

[18][2021] VSC 777.

[19][2021] VSC 777, [81]-[83].

Section 99 of the VCAT Act deals with notice of and attendance at hearings, and is relevant to the basis on which the Senior Member dismissed Ms Muscatello’s reopening application. It provides:

99 Notice of hearings
(1)The principal registrar must give notice, in accordance with the rules, of the time and place for the hearing of a proceeding to—
(a) each party to the proceeding; and
(b)each other person entitled to notice of the proceeding or hearing under this Act, the enabling enactment or the rules; and
(c)any other person that the Tribunal directs be given notice of the hearing.

(2)If a person, including a party, to whom notice has been given in accordance with the rules fails to attend, the hearing may be held in the absence of that person.
(3)In this section, the place for the hearing of a proceeding includes the hearing of a proceeding by audio link or audio visual link.

The grounds of the application for leave
The questions of law and grounds of appeal properly raised by Ms Muscatello’s application

Ms Muscatello’s Notice of Appeal identifies a number of questions identified as questions of law which are either not questions of law for the purposes of s 148 of the VCAT Act, or are not questions which relate to the Section 120 Order which is the subject of the application for leave to appeal.

Some questions make broad complaints which are essentially complaints about the merits of the Tribunal decision, the proceedings before the Tribunal as a whole, or aspects of the proceedings before the Tribunal that had no bearing on the Section 120 Order.[20] To the extent that the ‘questions of law’ raise complaints with respect to specific aspects of Tribunal procedure prior to the 7 June 2022 hearing or the 26 September 2023 hearing, there was no explanation in the Notice of Appeal of how they affected the making of the Section 120 Order, nor any evidence or submissions which provided that explanation. One ‘question of law’, question 8, raised whether the Tribunal considered ‘the clerical errors attributed to VCAT procedures’ in the context of the review hearing listed for 8 June 2023. That did relate to the Section 120 Application, in that it related to a hearing listed for that application which was relisted because only one of the two proceedings had been listed for rehearing, due to clerical error (as described in the Annexure). However the question of law did not identify why the acknowledged clerical error made by the Tribunal had any effect on the fairness of the later hearing listed for the Section 120 Application, in circumstances where the matter was, after the 8 June 2023 hearing, relisted on notice to Ms Muscatello, for the later date of 26 September.
[20]Such as question 4, ‘Did the Tribunal adequate assessed the case and its history’; Question 5 ‘Did the Tribunal’s consideration of the exceptional delay in the proceedings adequately accounted for any extenuating circumstances that may have contributed to the prolonged duration of the case’; Question 7 ‘Did the Tribunal consider the extended duration has been significantly influenced by the unprecedented challenges posed by the COVID-19 pandemic?’; Question 9 ‘Did the Tribunal consider the entire case such as the order dated 14^th of May 2020 that state proceedings were not suitable for teleconferences’; Question 10 ‘Did the Tribunal Consider order dated 11^th of May 2023 states that Ms Muscatello failed to advise the Tribunal of her new address however and email dated Friday, 8 July 2022 1:27PM shows the email had been updated with the Tribunal.

Similarly, some of the 6 grounds of appeal do not raise matters relevant to the Section 120 Order,[21] raised complaints about the merits of the Tribunal decision which are not amenable to review under s 148.[22]
[21]For example, the 3^rd and 4^th grounds, ‘The Tribunal failed to assess the extensive case history spanning five years, characterised by a substantial file reflecting the intricate and comprehensive nature of the proceedings. Additionally the Tribunal did not account mitigating factors, including challenges posed by the COVID-19 outbreak and administrative errors related to VCAT’ and ‘The Tribunal failed to consider the ramifications of clerical errors, and discrepancies in orders related to teleconference proceedings and the notification of Ms Muscatello’s address?’
[22]Ground 2 ‘The tribunal failed to consider Ms Muscatello claim that she was sold a non-functional machine’.

The question of law which was properly identified and which did relate to the Section 120 Order was the first question, ‘Did the Tribunal err in dismissing Ms Muscatello’s ‘reopening’ application solely based on her non-appearance at the scheduled hearing’.

I also accept that question 11 could be understood as raising a legal question essentially as to whether there was evidence to support a finding of the Tribunal [23] and that the issues raised with respect to transcript in grounds 12 to 14 could broadly be regarded as raising issues of procedural fairness, and thus questions of law.
[23]Did Tribunal properly assessed summary orally provided in sworn form by Mr Tusak at the 26 September 2023 hearing allegation that he has proof that Ms Muscatello had obtained a ‘medical certificate’ fraudulently, yet he did not provide such information?’

These questions of law could be broadly understood as relating to the first and fifth ground of appeal, that the Tribunal ‘failed to consider the factors supporting the re-opening of the case, including the absence of reasons in the June 7 2022 dismissal order and the unavailability of a transcript to enhance understanding of the decision making process’ and ‘seemingly sided with the fraud allegations despite a perceived inadequacy in the assessment of the information provided by Mr Tusak during the hearing. The mention of ‘without evidence’ implies a discrepancy between the Tribunal’s decision and the standard expectation of supporting claims with proper evidence or proof’.

The issues for determination

The issues raised by these broadly appropriately expressed questions of law and grounds of appeal raised in Ms Muscatello’s application are, essentially, the following.

(a) Whether it was open to the Senior Member to dismiss Ms Muscatello’s application for a reopening of the 7 June 2022 orders primarily on the basis that she did not attend the scheduled hearing. This involves a consideration of the Tribunal’s powers to proceed in the absence of a party, conferred by s 99(2) of the VCAT Act.

(b) Whether the additional reasons given by the Senior Member – delay in the proceeding and the questionable quality of the medical evidence to explain Ms Muscatello’s non attendance at the 7 June 2022 hearing – for refusal of the Section 120 Application were acceptable reasons to refuse an application.

(c) Whether any issue relating to obtaining transcripts of any of the hearings in the course of proceedings before the Tribunal affected the fairness of the hearing at which the Section 120 Order was made.

(d) Whether there was any bias on the part of the Tribunal in proceeding to make orders after hearing submissions on behalf of Check Inn Systems in the absence of Ms Muscatello.

I address these in turn below.

Did the Tribunal err in dismissing Ms Muscatello’s ‘re-opening’ application solely based on her non-appearance at the scheduled hearing

The Tribunal member’s findings as to Ms Muscatello’s failure to appear at the hearing on 26 September 2023 are recorded in his findings, which for clarity I repeat here (emphasis added):

At least after the adjournment of the 8 June 2023 hearing, this re-opening application came before me at the scheduled hearing on 26 September 2023 at 9.30am. Mr Tusak was in attendance on behalf of Check Inn Systems Pty Ltd but there was no appearance by Ms Muscatello. The bench clerk checked she was not outside and the hearing started at more like 9.40am to allow extra time in case Ms Muscatello was running late.
When the hearing started properly, Mr Tusak provided a summary of the history of this matter, plus I answered some queries from him.
I checked again after 10:00am and there was still no appearance by Ms Muscatello in the hearing room or outside it.
Ms Muscatello was notified of the date of the 26 September 2023 ‘re-opening’ hearing and the onus was on her (in bringing the re-opening application) to attend the 26 September 2023 hearing to act on that application.

With there still being no appearance by Ms Muscatello in excess of 30 minutes after the scheduled hearing start time, her ‘re-opening’ application accordingly was dismissed and the Tribunals orders of 7 June 2022 are affirmed. In other words, to avoid any doubt, Ms Muscatello must now immediately comply with the Tribunal orders of 7 June 2022.
The failure of Ms Muscatello to attend the scheduled 26 September 2023 hearing is in itself fatal to her ‘re-opening’ application.

Although rules of procedural fairness require that a party have an opportunity to be heard, so that it may not always be consistent with procedural fairness to proceed without a party being present, s 99(2) of the VCAT Act provides expressly that the Tribunal may hold a hearing in the absence of a party to whom notice has been given in accordance with the rules.

It is necessary, therefore, first to consider whether Ms Muscatello had notice of the hearing.

I observe, first, that she has not given evidence that she was not on notice of the hearing. Nor has she made any submission to that effect.

Secondly, the evidence of the parties provided a clear basis on which to conclude that Ms Muscatello had been given notice of the hearing:

(a) At the hearing of 8 June 2023, at which the hearing of Ms Muscatello’s review application was listed for a second time (the first hearing of 11 May 2023 having been adjourned at her request), Member Kim observed that there had been an administrative error in that only one of the two proceedings had been listed for hearing on that date. In light of that error on the part of the Tribunal (and having also observed that Ms Muscatello arrived late at the hearing) Member Kim made orders that the hearing of the proceeding be adjourned to a date to be fixed. Ms Muscatello, having appeared at the hearing at which that order was made, was plainly on notice that the hearing was adjourned and that she would be notified of the time.

(b) By letter dated 10 July 2023, the Registrar of the Civil Division of the Tribunal listed the review application for 9.30am on 26 September 2023 at the Tribunal premises at 55 King Street, Melbourne. There is no reason to consider that this letter was not received by Ms Muscatello. That letter was put in evidence by the affidavit of Mr Tusak of 22 March 2024, with a submission that Ms Muscatello had been warned in the letter of the fact that if a party fails to attend, the hearing may continue without the party, so that there was no good reason not to attend. Ms Muscatello did not in response submit or give evidence that she had not received that letter. Further, the recording of the hearing on 26 September 2023, which was played by Ms Muscatello in the hearing before me, records the Member having stated during his hearing that he checked again that day that Ms Muscatello had been notified of the hearing.

I also infer from the Tribunal member’s reasons, which refer to an email received on the day of the hearing from ‘Lynne Bekhor’, identifying herself as Ms Muscatello’s mother, which states that Ms Muscatello was in a car accident ‘on the way to the hearing this morning’, that Ms Muscatello was on notice of the hearing and was intending to attend. Again, although Ms Muscatello did not in this application for leave to appeal put on evidence as to that email and whether it was genuine or otherwise, she did not make any submission that the content of it was untrue or that she was not on her way to the hearing that day.

I conclude, therefore, that Ms Muscatello was on notice of the hearing.

The second issue arising under s 99(2) is that there is a discretion as to whether the hearing continues in the absence of the person. Ms Muscatello’s first question of law raises, essentially, whether the Tribunal member erred in that discretion in proceeding in the hearing in her absence.

For the following reasons I consider that there is no error in the Tribunal Member’s decision to proceed with the hearing, and to make orders on that day dismissing the review application, and that both decisions were entirely open to him.

First, it is clear from the evidence that Ms Muscatello was on notice that failure to attend a hearing may mean that it would proceed in her absence, and that orders may be made. This was stated very clearly in the Registrar’s letter of 10 July 2023, as follows (underlining added):

At the review hearing
·If [your] matter is in person, please arrive at the venue, at least 30 minute prior to the commencement of your hearing.
·…
·If a party fails to attend the hearing at the allocated time the hearing will proceed in the absence of that party and orders will still be made.

This was not the first occasion on which the Tribunal had put Ms Muscatello on notice that a hearing may proceed if a party fails to attend. This was stated in orders made on 28 April 2021 (referred to in the procedural history in the Annexure).

Secondly, to the extent that Ms Muscatello raises in her second question of law whether adequate consideration was given to ‘the circumstances leading to her absence’, Ms Muscatello has put on no evidence in this hearing to the effect that she had herself, or by another person, put the Tribunal on notice of ‘the circumstances leading to her absence’. Nor has she put on any evidence as to why she did not attend the hearing.

The Tribunal Member did refer in his reasons to the email received from an unknown person referring to Ms Muscatello having been in a car accident on her way to the hearing. He stated that after the hearing had concluded at approximately 10.15am, at 11.11am that day he:

… received an email from an unknown person (Lynne Bekhor) which reads as follows – “My daughter Lisa Muscatello was in a major car accident on the way to the hearing this morning. She is lucky to be alive. She will need some time to recover. Are you able to reschedule the hearing please?”

Ms Muscatello did not, in her application for leave to appeal in this Court, put on any evidence as to whether this email was genuine or not. She did not put the email in evidence. She did not call her mother to give evidence. She did not seek to tender any evidence from her mother. She did also not make a submission that the email was genuine, nor that the content of the email was accurate. To the extent that she did refer to the email in submissions, she stated (as noted above):

The Tribunal’s disregard for the email received after the hearing, purportedly from Ms Muscatello’s mother, raises questions about its willingness to consider evidence or extenuating circumstances.

Ms Muscatello has elected to put on no evidence about whether the email is genuine, or, as is left open by her submissions, only a ‘purported’ email from her mother. In these circumstances, it was entirely open to Senior Member Martin to give that email no weight, for the reasons he described:

… the Tribunal can give this email no real weight when:
(a)It was sent by a person the Tribunal cannot identify, using an email address the Tribunal is not familiar with.
(b)No evidence was provided to establish that Lynne Bekhor is the respondent’s mother.
(c)No evidence was provided that the respondent was actually in a road accident.
(d)No evidence was forthcoming that that respondent had suffered serious injuries.

As noted by the Senior Member he plainly could not consider that email which was received after the hearing had concluded in determining whether to adjourn the hearing. The above reasons were, in my view, valid reasons for the Senior Member to give the orders dismissing the application. Ms Muscatello has provided in this application for leave to appeal no evidence that she was in a car accident, nor that she was injured, despite it being clear from the Tribunal member’s reasons what evidence would be relevant.

The only material Ms Muscatello did provide which had any relevance to the accident is that she provided a scanned copy of a Statutory Declaration in the bundle of documents attached to her submissions. The Statutory Declaration was made on 26 September 2023 and has what appears to be an electronic signature of Lisa Muscatello and details of a witness at Malvern Police Station. The statutory declaration states that Ms Muscatello is

… an authorised person under section 248 of the Victoria Police Act 2013, ie a person
(a) who is injured as a result of a vehicle accident; or
(b)whose property is damaged or destroyed as a result of a vehicle accident
(c)who is a personal representative of a person who dies or is injured, or whose property is damaged or destroyed, as a result of a vehicle accident; or
(d)who is an authorised representative of a person referred to in paragraph (a) or (b), or a personal representative referred to in paragraph (c).

The Statutory Declaration then states that she is requesting vehicle accident information for one or more purposes, including obtaining legal advice, assessing a claim made under a contract of insurance.

The Statutory Declaration does not at any point say that Ms Muscatello was involved in a car accident, or was injured in a car accident, nor even that a car accident occurred on 26 September 2023 or any other date.

It was not explained by Ms Muscatello why she did not exhibit this Statutory Declaration to an affidavit, or give evidence explaining its relevance or what if anything she had received in response to the request referred to in the Statutory Declaration, in her evidence. She described it in a time line as ‘Victoria Police Accident Report’ but it plainly is not a report of an accident.

In circumstances where Ms Muscatello did not give any evidence as to why she did not attend the 26 September 2023 hearing, there is no basis on which it could be said that the Senior Member’s decision to proceed in her absence was affected by error, or incorrect. To the contrary, it appears to have been an exercise of the discretion to proceed which was correct, in the circumstances disclosed by the evidence.

The Tribunal’s reasons for concluding that a re-opening of the 7 June 2022 orders would not be appropriate

As set out above, the Tribunal member found that even if Ms Muscatello had attended the hearing, three factors ‘count extremely strongly against any re-opening of the Tribunal orders of 7 June 2022’. Those were as follows:

(a)The exceptional delay already experienced by Check Inn Pty Ltd, where its C4906/2018 claim first came to VCAT about five years ago.
(b)The purported ‘medical certificate’ from Associate Professor Gautam Vaddadi (which Ms Muscatello relies on) being provided in an email form, which is completely different to the typical format of a stand alone ‘certificate’ provided by doctors. Notably, a conventional medical certificate typically has the proper ‘letterhead’ and qualifications/contact details of the relevant doctor at the top of the page.
(c)Ms Muscatello herself describing her medical reason for not attending the 7 June 2022 hearing as a ‘medical emergency’, yet curiously the purported ‘medical certificate’ which Ms Muscatello has supplied is an email dated over a week before the 7 June 2022 scheduled hearing i.e. this email is dated 30 May 2023.

First factor - The reference to exceptional delay and the reasons for it

As to the first factor, Ms Muscatello has raised in her questions of law and grounds of appeal whether the Tribunal had taken into account ‘extenuating circumstance’ which had caused exceptional delay such as COVID-19 related delays, and the clerical error of the Tribunal in listing only one of the matters in the 8 June 2023 hearing. I am satisfied that the Tribunal, in referring to ‘exceptional delays’ was not discounting factors beyond the control of the parties in the proceedings before it in describing the delay in resolving the claim since it had been commenced five years before. The Senior Member did not attribute the exceptional delay to any party or single source.

Second and third factor - The ’medical certificate’ of Associate Professor Vaddadi

The second matter, relating to the ‘medical certificate’ from Associate Professor Gautam Vaddadi, relates to a document which had apparently been provided to the Tribunal by Ms Muscatello in the ‘written information in support of her re-opening application referred to in the Tribunal Member’s findings.[24]
[24]Orders of Senior Member Matin 26 September 2023, Background and Findings at [4].

Again, Ms Muscatello did not address this ‘medical certificate’ in her evidence in this application for leave to appeal.

However, Mr Tusak did address the ‘medical certificate’ in his evidence. In his affidavit he stated that the Supreme Court application should be rejected for reasons including that ‘the applicant has delayed justice as follows’. The affidavit set out a series of matters, including the following observation relevant to the medical evidence:[25]

Falsifying medical evidence as per attached evidence.

[25]Affidavit of Stephen Tusak affirmed 22 March 2024, [2(I)].

Exhibited to Mr Tusak’s affidavit was a document titled ‘Timeline of key points’ which included the following:

30/05/2023 … Forged medical certificate provided to VCAT by Muscatello Dated 30_05_23
10/07/2023 … Letter of confirmation that medical certificate is a forgery

The exhibits to the affidavit included a copy of a document, apparently in the form of an email, which stated as follows:

From:        Gautam Vaddadi [email protected]
Sent:        30 May 2023 12:04
To:           Lisa Muscatello [email protected]
Subject:    Re: Urgent Procedure
To Whom It May Concern,
I am writing this medical certificate in support of Lisa Muscatello who was scheduled for an urgent procedure on June 7 and 8, 2022.
The patient was experiencing extreme pain and required immediate intervention to alleviate their discomfort and prevent further complications.
In my medical opinion, it was essential that the procedure be performed as soon as possible to ensure the best possible outcome for the patient.
I recommended that the patient be granted leave from work during the recovery period following the procedure, which is expected to be 14 days. During this time, the patient will require rest and recuperation to facilitate a smooth recovery and minimize the rise of complications.
Please do not hesitate to contact me if you require further information.
Sincerely,
A/Prof Gautam Vaddadi MBBS BMedSci FRACP PhD
Director of Cardiac Services, Cabrini Health
Head of Heart Failure, Northern Health
Adjunct Clinical Associate Professor, University of Notre Dame, School of Medicine, Sydney
Mobile: 0423 566 007
Private Consulting Rooms: 03 9500 2925 (Suite 21, Cabrini, Malvern)
Fax 03 8648 6389.

Also exhibited to the affidavit was an email exchange which is stated as being between Mr Tusak and Dr Vaddadi, as follows:

From:         Gautam Vaddadi {[email protected]}
Sent:          Tuesday 6 June 2023 5.33PM
To:              Steve Tusak
Subject:      Re: Please refer to attached copy of email and advise it is was written and sent by yourself
Dear Steve,
I confirm the attached document is false and not written by me.
Sincerely
A/Prof Gautam Vaddadi
Sent from my iPhone
On 6 June 2023, at 5.30pm, Steve Tusak {[email protected]} wrote:
Subject: Please refer to attached copy of email and advise it is was written and sent by yourself
Attn Assoc Professor Gautum [sic] Vaddadi

Please refer to attached copy of email and advise if it was written and sent by yourself. This email was sent as evidence of a medicate condition by Lisa Muscatello who is involved in a legal dispute with my company that is currently before VCAT.
Regards
Stephen (Dovid) Tusak
Check Inn Systems Pty Ltd…

At the hearing, given the serious nature of the allegation that the medical certificate was false, and the fact that Ms Muscatello had not addressed this in her evidence I gave Ms Muscatello an opportunity to make submissions about it. She submitted:

Well, the procedure did happen. And – the fact that Mr Tusak hasn’t even – he’s gone to a personal email. I – I just - how’s that even possible that you would get a doctor on a personal email?[26]

[26]Transcript 28/11/24 T41.17-26.

She also stated that there was a letter from Professor Vaddadi when questioned as to whether it was the same letter as referred to by the Tribunal and in Mr Tusak’s evidence, or a different letter, she said it was a letter showing that she had been at Cabrini’ I understood this to be a reference to a photograph of a document, which she had supplied to the Court and Mr Tusak during the hearing. The document was titled ‘Informed Financial Consent’ from Cabrini Emergency, with pro forma content. A sticker on the document was dated 18 September 2024 and referred to ‘GP: M Hurley’. It did not refer to Associate Professor Vaddadi.

Given that Ms Muscatello disputed that Mr Tusak could have obtained any email response from Associate Professor Vaddadi, I permitted him to give oral evidence at the hearing to clarify how the emails between him and Associate Professor Vadaddi which were exhibited to his affidavit had come into existence. Mr Tusak gave evidence on affirmation that:

(a) He had telephoned Associate Professor Vaddadi to ask if he had provided the medical ‘certificate’, probably on the mobile telephone number provided on the report;

(b) Associate Professor Vaddadi asked him to send it to his email address, which was a gmail address;

(c) Mr Tusak sent the medical ‘certificate’ to Associate Professor Vaddadi by email to that gmail address, which was the email exhibited to his affidavit, and

(d) Dr Vaddadi had responded as set out in the email of 6 June 2023, to the effect that the document was false and not written by him.

Ms Muscatello in her reply submissions at the hearing submitted that Mr Tusak had ‘fabricated something’[27] and that she didn’t believe that a private email address would be used.[28]
[27]Transcript, 28/11/24 T74.03-05.
[28]Transcript 28/11/24 T39.18-23; T41.22-26.

Ms Muscatello submitted in reply submissions that Mr Tusak’s evidence that he had spoken to Dr Vaddadi who had confirmed by email that the ‘certificate’ was not written by him, was false. I noted that this was also a serious allegation, and that she had not elected to call the Associate Professor to give evidence despite this issue having been clearly raised in the Tribunal decision and Mr Tusak’s evidence.[29]
[29]Transcript 28/11/24 T75.T04-05.

Ms Muscatello initially said that she would call Associate Professor Vaddadi to give evidence. I inquired of Ms Muscatello, for the purposes of considering whether it could be appropriate to grant an adjournment and leave to adduce this evidence what Associate Professor Vaddadi was expected to say. She submitted that ‘he can confirm that I’ve actually been there’[30]. When I asked what evidence she expected he could give as to whether he had written the emailed medical certificate, and suggested that she consider carefully whether she did want to call the Associate Professor to be asked about the ‘medical certificate’ email, Ms Muscatello stated that she did not want the matter to go on any more, and wanted the matter finalised, and confirmed that she did not wish to call him.[31]
[30]Transcript 28/11/24 T74.03-31.
[31]Transcript 28/11/24 T75.12-T76.14.

In circumstances where there was no evidence from Ms Muscatello about the ‘medical certificate’ of Associate Professor Vaddadi, despite it having been clearly referred to in the Tribunal’s reasons and in Mr Tusak’s affidavit evidence, there is no basis to impugn the Tribunal member’s conclusion that he could not rely on that evidence as evidence of why she did not appear at the 7 June 2022 hearing. His observations about the ‘medical certificate’ in his reasons were open and there was no error in referring to it as a ‘purported “medical certificate’’.

I do note that the Senior Member, at paragraph 11(c) of his reasons, referred to Ms Muscatello describing her medical reason for not attending the 7 June 2022 hearing as a medical emergency, where the ‘medical certificate’ was email dated ‘over a week before the 7 June 2022 scheduled hearing i.e. this email is dated 30 May 2023’. This does appear to have been a misreading of the dates, noting that the emailed ‘medical certificate’ was dated 30 May 2023, the year after the 7 June 2022 hearing.

I do not consider that this error was material. The Senior Member’s point was that it was curious that if Ms Muscatello had experienced a medical emergency, the email was written a week before the hearing. While that is not correct, there did remain an explanation called for as to why the email, if written to explain her absence at the 7 June 2022 hearing, was written almost a year later.

Other medical evidence

For completeness it is appropriate to note that Ms Muscatello’s affidavit evidence included a further medical certificate dated 7 June 2022 from a Dr Ion Pop, without clear explanation by evidence of its relevance or whether it had been provided to the Tribunal and if so, at what times. She did not rely on this medical certificate in her submissions in this application for leave to appeal as a reason why she did not attend the 7 June 2022 hearing, and it is unclear whether she had put it before the Tribunal in support of the Section 120 Application.

The medical certificate from Dr Pop stated:
THIS IS TO CERTIFY THAT
Ms Muscatello has a medical condition and will be unfit for work/attend scheduled appointments from 07/06/2022 to 12/06/2022 inclusive.
The certificate did not identify the nature of the medical condition nor contain any further information.

Mr Tusak exhibited to his affidavit an email exchange between Ms Muscatello and himself dated 7 June 2022, which was as follows (the most recent email in the exchange being first). I infer that the medical certificate of Dr Pop was attached to the first of the emails:

From:       Lisa Muscatello {[email protected]
Sent:        Tuesday 7 June 2022 4.41PM
To:           Steve Tusak, [email protected]
CC:          [email protected]
Subject:    Re C4906/2018 & C8464/2018
I would like nothing more than to finale the case as we are largely out of pocket. This case has been delayed many times, not by our hands.
Your lack of empathy when someone is in a serious state of health is appalling. Please call him yourself. This has been previously shown.
Kind Regards
Lisa
From:        Steve Tusak {[email protected]}
Date:        Tuesday 7 June 2022 at 3.33pm
To:           Lisa Muscatello {[email protected]}, [email protected]…

…
Subject:    RL: C4906/2018 & C8464/2018
This was received at 2.58pm today
This is one more attempted delay in a series of delays and reschedules due to holidays, trips and other events over the last 4 year and is wearing thin.
I strongly object to being a victim subjected to abuse of VCAT’s procedures.
Can we please find out when the doctor’s visit occurred?
Regards
Stephen (Dovid) Tusak
Check Inn Systems Pty Ltd ….
From:        Lisa Muscatello
Sent:         Tuesday, 7 June 2022 2:58PM
To:           [email protected]
CC:          steve tusak {[email protected]}
Subject:    C4906/2018 & C8464/2018
Dear VCAT,
I have a medical condition that requires going to the hospital.
Could we reschedule tomorrow’s hearing? We are hoping to be available in a week however it may take longer.
Kind Regards
Lisa.

Had this medical certificate been put before the Tribunal in the Section 120 Application, I do not consider it would have enabled the Tribunal to be satisfied as to the requirement in s 120(4)(a)(i), that ‘the applicant had a reasonable excuse for not attending the hearing’.

The evidence indicates that the email was received after the hearing on 7 June 2022. More importantly, however, it does not provide evidence that Ms Muscatello was unable to appear at the hearing. It simply states that Ms Muscatello has an unspecified ‘medical condition’ and ‘will be unfit for work/attend scheduled appointments from 07/06/2022 to 12/06/2022’.

Medical certificates which do no more than refer to a ‘medical condition’ and unfitness for work are not an adequate basis on which to adjourn a hearing. In Ross v Commonwealth,[32] Keogh J considered an application for an adjournment of a trial which was supported by a document headed ‘Medical Certificate’ that stated that Mr Ross ‘has a medical condition and has been unfit for work from 22/11/2022 to 28/11/2022 inclusive’ and appeared to be signed by a doctor. His Honour rejected the certificate as carrying no weight on the basis that it did not record a diagnosis or provide evidence that Mr Ross was unit to attend the hearing.[33] His Honour also referred to Magjarraj v Asteron Life Ltd[34] in which Barrett J in the NSW Supreme Court made the following observations:

The document signed by Dr Dulic provides no evidence that the plaintiff is incapacitated or unfit to attend. It says that the plaintiff is receiving medical treatment for a “medical condition”. What else he might need medical treatment for is left to the reader's imagination, as is the precise “medical condition” from which he is supposed to be suffering. People with “medical conditions” attend court every day.
The plaintiff says in his own letter that he has “an infection”. That, too, says nothing about his capacity or incapacity to attend - or perhaps more accurately shows that he has not suffered a heart attack or a fractured skull or some other sudden event that has laid him low. An infection, of its nature, does not generally incapacitate before 8pm a person who appeared quite healthy when sitting in court up to 4pm.
All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed “medical condition”, culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.
Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect courts to treat them as evidence if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members.

[32][2022] VSC 779, [24], [27].

[33][2022] VSC 779, [27].

[34][2009] NSWSC 1433 [20]-[23].

In this case the certificate of Dr Pop was entirely inadequate to explain why Ms Muscatello could not appear at the hearing on 7 June 2022. In circumstances where Ms Muscatello had been on notice of the 7 June 2022 hearing since the orders of Member Calabro made on 2 August 2021, and the explanation that the hearing may proceed to determination if a party failed to appear, it could be expected that a significantly more informative explanation of why she was unable to attend the hearing would have been obtained.

Even had that medical certificate been before the Tribunal Member hearing the Section 120 Application, it would not in my view have provided a sufficient basis on which the Tribunal could be satisfied, as required by s 120(4)(a)(i), that Ms Muscatello had a reasonable excuse for not attending the 7 June 2022 hearing.

Difficulties with obtaining transcripts did not affect the fairness of the s 120 hearing

Ms Muscatello raised in various ways in her questions of law and grounds of appeal the issue of transcripts. Taking these issues collectively I will consider whether any issue relating to obtaining transcripts of any of the hearings in the course of proceedings before the Tribunal affected the fairness of the hearing at which the Section 120 Order was made.

The issue of transcripts also arose because Ms Muscatello’s evidence in support of her application for leave to appeal included what were described as ‘transcripts’ of the Tribunal hearings on 28 November 2019, 28 April 2021, 7 June 2022, and 26 September 2023, but which were not prepared by any of the authorised transcript providers.[35] This was despite orders having been made by a judicial registrar providing for Ms Muscatello to file affidavits in support of her application, ‘including, where applicable, an affidavit exhibiting the transcript of any relevant hearing’ on 13 March 2024 and again 12 September 2024.
[35]Affidavit of Lisa Muscatello filed 15 November 2024, Exhibits TLM 1-4.

The transcripts provided by Ms Muscatello contained numerous obvious errors[36] and were obviously unreliable. Ms Muscatello submitted that she had been unable to obtain transcripts from the Tribunal’s authorised transcript providers and had instead obtained the audio recordings and transcribed them using an unidentified online program. Although I did not regard the email exchanges as demonstrating that it was not possible for Mr Muscatello to obtain transcript, it was apparent that there had been periods in which the providers were unable to provide transcripts without fairly significant delays. I therefore gave leave to Ms Muscatello to play the transcript of the hearing of 26 September 2023 in court, which she was able to do successfully.
[36]For example describing the respondent as ‘Cheating Assistance for a Proprietary Limited’; referring to ‘Member Muscatello’ and ‘Member Tusak’; or referring to statements made by the parties as having been made by the Tribunal member and vice versa.

As to the matters raised by Ms Muscatello in relation to access to transcript in her questions of law on the appeal, it is relevant to repeat her questions of law 12, 13 and 14:[37]

Did the Tribunals failure to provide the transcripts requested since the 8^th of May 2023 within a reasonable time frame, leading to a denial of the right to a fair hearing?
Were the Tribunal procedures for handling transcripts requests followed appropriately considering the court transcript services are all at full capacity until Feb 2024?
Did the Tribunal take into consideration the issues in obtaining transcripts impact [sic] Ms Muscatello’s ability to present her case?

[37]Notice of Appeal filed 22 November 2023.

Ms Muscatello’s evidence and submissions did not elaborate any way in which any delay in obtaining transcripts impaired her ability to have a fair hearing at the 7 June 2022 and 26 September 2023 Tribunal hearings. Nor did it identify how any issue in obtaining transcript affected her ‘ability to present her case’.

This is a sufficient basis on which to dismiss those proposed grounds of appeal as having no reasonable prospect of success. However, as Ms Muscatello devoted a considerable amount of her evidence and submission to her assertion[38] that ‘despite numerous attempts to obtain copies of transcripts, the transcripts failed to reach the applicant by email or mail’, it is appropriate to address this briefly.
[38]Made in her Affidavit filed 30 April 2024, [1].

Ms Muscatello submitted a large range of emails and documents on the issue of transcripts. Some relate to her attempts to obtain transcript in November 2023 after the Section 120 Application. I cannot see any way in which any issues in obtaining transcripts after the 26 September 2023 hearing could have affected the fairness of the hearing on that date, and it did not affect the hearing of this application as the audio recording of the hearing was played in Court.

As to the evidence on whether the Tribunal had ‘failed’ to provide transcript as asserted in question of law 12 I accepted that it established that there were periods in which there were not insignificant delays in obtaining transcripts. However, the evidence also left open the possibility that Ms Muscatello had not taken reasonable steps to obtain the transcripts at times when they could have been made available.

The first request for transcripts identified in Ms Muscatello’s evidence is an email to Tribunal Transcripts and Recordings Support dated 9 May 2023 in which she requested transcripts of five hearings from 2019 onward, including the hearing of 7 June 2022. The Tribunal responded the following day advising that there were no hearings on two of the days identified by Ms Muscatello, and no recording of a directions hearing on 28 November 2019, but that transcripts could be provided for three dates including 7 June 2022.[39]
[39]First Affidavit of Lisa Muscatello affirmed and filed 22 November 2023 (First Muscatello Affidavit), Exhibit LM8.

The email chain shows that Ms Muscatello forwarded the Tribunal’s email of 10 May 2023, to the Tribunal registry over five months later on 3 November 2023, saying ‘I still do not have copies of the below or the orders. I need the information urgently.’ The Section 120 Application had already been heard by this time. While it appears that there were some further delays after this request, she was provided with audio recordings. Any delay in obtaining the transcripts after that date cannot be relevant to whether Ms Muscatello had a fair opportunity to present her case at the 26 September 2023 hearing.

In conclusion Ms Muscatello has not identified any way in which not having transcripts of the 7 June 2022 or other hearings prior to the 26 September 2023 hearing lead to a denial of a fair hearing, or any other error affecting the making of the Section 120 Order. These questions of law and related grounds of appeal also fail.

There was no bias on the part of the Tribunal member

Finally, I have understood Ms Muscatello’s questions of law and grounds of appeal as raising whether there was any bias on the part of the Tribunal in proceeding to make orders after hearing submissions on behalf of Check Inn Systems in the absence of Ms Muscatello.

There was nothing identified by Ms Muscatello in her evidence or submissions to support a submission that the Senior Member was biased in his hearing or determination of the Section 120 Application. He only heard submissions from Mr Tusak as Ms Muscatello did not appear. He did not rely only on Mr Tusak’s evidence, but referred to explanations and material put forward by Ms Muscatello. He gave rational reasons for his conclusions which, although adverse to Ms Muscatello’s application, did not disclose any bias on his part.

The grounds of appeal alleging bias or a lack of fairness must also be dismissed.

Conclusion

Ms Muscatello has not made out any of her grounds of appeal and associated questions of law. The application will be dismissed.

I will permit the parties to make brief written submissions to address any issues of costs.

ANNEXURE

Procedural history in the Tribunal relevant to the application for leave to appeal

The Tribunal proceeding prior to the hearing on 7 June 2022 had a history described by the Senior Member Martin as having ‘an exceptionally large VCAT history, going back over five years to 2018. Overall the VCAT file has three inches of paperwork in it’.[40]
[40]Tribunal Order made 26 September 2023, Background and Findings, [2].

The substantive dispute between the parties has limited relevance to the current application, which is an application for leave to appeal only the Section 120 Order. Although Ms Muscatello made written and oral submissions about the alleged defects in the equipment[41] (which Mr Tusak rejected) it was explained to her at the hearing that, given that the application for leave to appeal was limited to the Section 120 Order, it was necessary that she focus her submissions on what she said was the legal error affecting that order.
[41]See Applicant’s Written Submissions 24 May 2024 which made extensive submissions about claims of causes of action under s 18, 20 and 55 of the Australian Consumer Law,

It is relevant to explain the procedural history of the matter in the Tribunal given the reference in the Senior Member’s Section 120 Order to the ‘exceptional delay’ since the initiation of the Tribunal proceeding in 2018. The following sets out procedural events leading to the making of the 7 June 2022 Orders and the Section 120 Order, insofar as they are apparent from the evidence filed by the parties in this application.

On 8 October 2018, Senior Member Warren made orders which record the following:[42]
[42]Affidavit of Stephen Tusak affirmed 22 March 2024, Exhibit, Tribunal Orders of Senior Member L Warren, 8 October 2018.

On receiving a second application for an adjournment from the respondent [Ms Muscatello] contained in her email dated 5 October 2018 the following orders are made in chambers.
The Tribunal finds that:
1. The consent of the other party has not been obtained.
2.The applicant for the adjournment has not provided sufficient grounds for the granting of an adjournment.
3.It appears that any other duly appointed agent or employee of the applicant for the adjournment may represent and bind the applicant for the adjournment at the hearing of this matter.

4. The application is made too close to the date of hearing.
5.The proceeding is listed for a directions hearing only on 11 October 2018. The respondent can apply to participate in the directions hearing by telephone if she wishes.

The Tribunal orders that:
1. The application for an adjournment is refused.
2.The directions hearing of this matter shall take place at 9.30 a.m. (Melbourne time) on 11 October 2018 at 5^th floor, 55 King Street, Melbourne.

It is not apparent from the evidence whether the directions hearing proceeded on that day. On 19 December 2018, a hearing was held before the Tribunal. The orders made on that day by Member Rowland include the following:[43]
[43]Tribunal Order of Member L Rowland, 19 December 2018.

1.Today’s hearing is converted into a compulsory conference because there was insufficient time allowed for hearing and Ms Muscatello required an adjournment.
2.The proceeding is adjourned to be heard with C8464/2018 on Tuesday 21 May 2019 at 10am with a full day allowed for hearing.

At the hearing on Tuesday 21 May 2019, after a negotiated settlement of the dispute, the proceedings were struck out with a right of reinstatement.[44]
[44]See Findings referred to in orders of Tribunal Member Calabro on 2 August 2021, [5].

The parties applied to reinstate the proceedings, apparently on the basis that the settlement terms were not complied with.[45] On 18 September 2019, Deputy President Lulham made orders that the proceeding was reinstated at the application of Check Inn Systems, and providing for the proceeding to proceed by way of claiming the balance of money due under the settlement agreement or proceed by way of hearing the dispute.
[45]Tribunal Order of Member Calabro, 2 August 2021, [6].

On 28 November 2019 Orders were made by Senior Member Campana permitting further Particulars of claim to be provided, which were permitted to address additional matters, and setting the matters down for hearing on 7 April 2020.[46] The Orders of Deputy President Lulham on 14 May 2020 indicate that hearing did not proceed on that day, apparently because both the parties did not file the documents required in the 28 November 2019 order, and because of COVID-19 restrictions. In that order Lulham DP referred to ‘the apparent omission by the parties to file and serve all documents required by that Order’ and found that the proceeding was not suitable for a teleconference or online conference, and that COVID-19 restrictions did not permit face to face hearings. The Deputy President made orders that the parties may serve the documents required by the 28 November order by 22 June 2020 and referred the matter to an administrative mention for the further conduct of the proceeding. Orders made by the Tribunal on 10 July 2020 and 30 October 2020 note that the Tribunal was continuing to monitor the effects of COVID-19 and provided for an extension to the date of the administrative mention.[47]
[46]Tribunal Order Member Campana, 28 November 2019.
[47]Tribunal Orders of Deputy President Lulham, 10 July 2020 and Senior Member Moraitis, 30 October 2020.

On 28 April 2021 orders were made, at a teleconference at which Ms Muscatello and Mr Tusak appeared, for the provision of documents relevant to the matters in dispute and listing the matters for video hearing on 2 August 2021.[48] Order 7 of those orders stated:
[48]Tribunal Orders, Senior Member Moraitis, 28 April 2021.

If a party fails to access the video or teleconference at the allocated time, the hearing will proceed in the absence of that party and orders will be made.

On 2 August 2021, Member Calabro had a hearing by video conference at which both Ms Muscatello and Mr Tusak appeared. The hearing did not proceed on that day. The reason for this appears to be the finding made by Member Calabro, recorded in his orders made that day, that:

The applicant in C8464/2018, Lisa Muscatello, failed to notify the respondents Steve Tusak, Check Inn Systems Pty Ltd and the Tribunal of a change of address for service. Therefore, she did not receive the respondent’s “Counterclaim Rebuttal”.

Member Calabro made orders recording Ms Muscatello’s new address for service and providing for the service of documents by both parties. Orders 7 to 9 of those 2 August 2021 orders stated (bold in the original):

7.This proceeding (and any counterclaim) is listed for video hearing on 7 June 2022 at 10.00am before any Member with an estimated duration of 3 consecutive days.
8.The parties must access the hearing at the allocated time and follow the instructions provided in the email from VCAT. VCAT will email the parties instructions to access the hearing two (2) business days prior to the hearing.
9.If a party fails to access the video or teleconference at the allocated time, the hearing will proceed in the absence of that party and orders will still be made.

On 7 June 2022, the hearing of the matter proceeded by video conference. The orders made by Member Campbell on that day record that:

(a) Mr Tusak appeared for Check Inn Systems. There was no appearance for Ms Muscatello.

(b) An application to amend Check Inn Systems’ claim, to increase the amount sought to $23,107 was granted.

(c) In the proceeding brought by Check Inn Systems, Ms Muscatello was ordered to pay it $11,978, and its claim for interest was dismissed.

(d) Ms Muscatello’s claim against Check Inn Systems was dismissed.

(e) Ms Muscatello was ordered to pay Check Inn Systems $2,395.50 for expert fee costs.

On 20 September 2022, Ms Muscatello emailed the Tribunal an application for review of the 7 June 2022 Orders.[49] A hearing was listed for that application.
[49]See Tribunal Orders of Member Kim made 8 June 2023, Notes, [4]. Ms Muscatello did not provide a copy of the application in her evidence. A request was made to Ms Muscatello by email from my chambers on 26 November 2024 that she provide a copy of that application to assist the Court in hearing her application. No response was made by Ms Muscatello to that email.

On 11 May 2023, Senior Member Moraitis made orders. In the orders she referred to having received an email dated 10 May 2023 from Ms Muscatello applying for an adjournment of the review hearing. Senior Member Moraitis adjourned the application for the review to 8 June 2023, and made the following findings recorded in the order:

1.In 2018, Check Inn Systems Pty Ltd, commenced this proceeding (C4906/2018) against Ms Mustcatello [sic] (respondent in this proceeding).
2.Subsequently, Ms Muscatello issued her counterclaim against Check Inn Systems in proceeding C8464/2018.
3.On 7 June 2022, the Tribunal heard and determined the two proceedings in Ms Musctcatello’s [sic] absence. The order made by the Tribunal in the two proceedings that day required Ms Muscatello to make certain payments to Check Inn Systems Pty Ltd in proceeding C 4906/2018 and dismissed Ms Muscatello’s claim against Check Inn Systems Pty Ltd in proceeding C8464/2018).
4.On 20 September 2022, Ms Muscatello email the Tribunal her application for review of the orders made by the Tribunal on 7 June 2022 in both proceedings.

At the review hearing on 8 June 2023, Ms Muscatello arrived late to the hearing, after Member Kim had commenced the hearing. The Tribunal member, Member Kim, adjourned the hearing to a date to be fixed. Member Kim observed in the notes to that Order:

5.At today’s hearing, Ms Muscatello arrived at approximately 2.13pm just when the Member was about to dismiss the reviewing application for non-appearance.
6.Due to no fault of the parties, the Tribunal has only listed a review hearing for this proceeding and omitted to list Ms Muscatello’s application for review of the order of 7 June 2022 as it pertains to proceeding C8464/2018.
7.Given that Ms Muscatello seeks a review of the last orders made in both proceedings on 7 June 2022, and the two proceedings directly relate to each other (being a claim and a counterclaim), Member Kim considered that it would be inappropriate and contrary to the efficient management of the proceedings to hear and determine Ms Muscatello’s application for review for this proceeding only without dealing with her application for review of the order of 7 June 2022 as it applies to proceeding C8464/2018.

Member Kim ordered that the hearing of the application for reopening of the orders made in the two proceedings was adjourned to a date and time to be fixed, and that a half day was to be allowed for the two proceedings.

By letter dated 10 July 2023 to the parties, the Registrar of the Civil Division of the Tribunal listed the review application for 9.30 am on 26 September 2023 at the Tribunal premises at 55 King Street, Melbourne. The letter stated, relevantly, as follows:

At the review hearing
·If [your] matter is in person, please arrive at the venue, at least 30 minute prior to the commencement of your hearing.
·If your matter is listed via teleconference, please follow the instructions provided to you in the attachment in this Notice.
·If your matter is listed via videoconference, VCAT will email you instructions to access your hearing prior to the hearing.
·If a party fails to attend the hearing at the allocated time the hearing will proceed in the absence of that party and orders will still be made.

For up to date information and FAQ regard in-person fixtures at the Tribunal, please refer to our in person proceedings page below.
…
Under section 120 of the Victorian Civil and Administrative Tribunal Act 1998, the issue VCAT must consider at the hearing of a review application are:
(a)whether the party seeking the review had a reasonable excuse for not attending or not being represented at the original hearing;
(b)if the review application was made within 14 days of the party becoming aware of the VCAT order, and, if not, whether the time limit should be extended;
(c)whether party seeking the review has a reasonable case to argue at a final hearing; and
(d)whether the party seeking the review should pay any costs incurred by the other party.

At the review hearing, both sides can give evidence and put arguments in relation to these issues. VCAT will only deal with these issues, not the substance of the case.
VCAT will hear the evidence and arguments of the parties taking part in the review hearing and make one of the following orders:
(1)if the review is not successful: VCAT will dismiss the review application and confirm the original order.
(2) if the review application is successful: VCAT will grant the review application, revoke (cancel) the original order and order a new hearing on another date. VCAT may also order the party seeking the review to pay any costs incurred by the other party.

[2024] VSC 745

4 December 2024