I was drinking beer at The Peacock the other afternoon, and a VCAT member was muttering about the Supreme Court overturning VCAT decisions on the basis that applications for adjournment were not granted when they could have been cured by an order for costs. The suggestion was that the Court may have overlooked the fact that no costs are awardable in certain classes of cases. The other point was that in many lists, like the civil list, members are expected to churn through a case an hour, without the assistance of counsel on which decision makers generally rely on so heavily.
My conversation came back to me while reading HL v Fahey [2007] VCAT 2400, a case about Ms Fahey’s dissatisfaction with a bill for $1,199. Ms Fahey successfully sought 2 adjournments. The first time, she had to go to Norway for a qualifying competition for the Olympics. Her game is dressage. The second time, she simply wrote in sick. The third time, she attached a sick note from a doctor. VCAT told her that administrative adjournments were over and told her to come to the hearing and make her application there, and to be ready to proceed if she failed. She did not turn up, and so an order was made against her. She sought a review, akin to an application to set aside a default judgment. She sent a fax to VCAT at 9.36 a.m. before the 10 a.m. hearing in which she said she was ‘unable to attend today’s review hearing due to extreme illness’, and concluded ‘I will contact you again in the future to arrange a new review date.’ That attempt to direct the Tribunal to adjourn failed, and Senior Member Howell heard the case in her absence, saying:
’15 Section 97 of the Victorian Civil & Administrative Tribunal Act 1998 provides that the Tribunal “must act fairly and according to the substantial merits of the case in all proceedings”. This is the fourth request by Ms Fahey for an adjournment. The tax invoice is for $1,199.00 and nothing has been paid. It is unfair to [the solicitor] to expect it to prepare for each hearing, and incur the cost of each hearing, only to have Ms Fahey seek to have the hearing adjourned at a late stage. Despite the absence of Ms Fahey, I intend to deal with the application for review on its merits, doing the best I can from the materials provided to the Tribunal by Ms Fahey.’
There was no order as to costs, and, because the case involved less than $10,000, there is probably no prospect of a costs application succeeding. The Tribunal was not satisfied that Ms Fahey had been sufficiently unwell to justify not appearing on the occasion when an order was first made against her. The possibility that the whole thing was an exercise in delaying payment of the bill at no cost to Ms Fahey except for a couple of stamps and the charge for transmitting a fax cannot be ruled out as a result of her failure to appear before VCAT at all during the whole case. If it were, no less gross an abuse of process would have been perpetrated than was the case in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169.
See also Velissaris v Berger Kordos [2007] VCAT 2401, where Ms Velisaaris faxed VCAT at 1.45 p.m. the day before the hearing of her Legal Practice Act, 1996 s. 103 application to set aside her costs agreement with the respondent solicitors, saying ‘my health has dramatically deteriorated and am unable to attend hearings or any other stressful matters until further notice’. The hearing went ahead in her absence, the application was dismissed, and she was ordered to pay costs of and incidental to the hearing (but not of the proceeding) of $1,250. The facts are slightly more complicated; read the decision for the full story.
