VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
Residential Tenancies LIST	
vcat reference No. R2019/12331	
CATCHWORDS	
Residential Tenancy; application under section 120 Victorian Civil and Administrative Tribunal Act 1998; whether reasonable excuse for not being represented at hearing; inadequacy of medical certificate; need for medical certificate to explain why a person’s medical condition would prevent appearance; Nakx and Naky v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 referred to.	

APPLICANT	Shiang Ye	
RESPONDENT	Kornucopia Pty Ltd (ACN 615 630 316)	
WHERE HELD	Melbourne	
BEFORE	R. Buchanan, Member	
HEARING TYPE	Hearing of leave application	
DATE OF HEARING	30 May 2019	
DATE OF ORDER	3 June 2019	
CITATION	Ye v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 824	

Order
1.	The application for review of the Tribunal’s order of 23 April 2019 is dismissed.
2.	The Tribunal’s order of 23 April 2019 is affirmed.
3.	I direct the Principal Registrar to place a copy of these reasons on the Tribunal’s files in proceedings R2018/43052, R2019/8239, R2019/8240, R2019/13349, R2019/13353 and R2019/13369.

R. Buchanan
Member			
aPPEARANCES:		
For Applicant	No appearance	
For Respondent	Ms Lulu Xu, director	

Reasons
1	Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) provides that the Tribunal may hear and determine an application to review a Tribunal order, if the applicant for review had a reasonable excuse for not attending or being represented at the hearing at which the order was made.
2	If an application for review is dismissed, the applicant may make a second application to review, but only if the Tribunal grants leave to do so - rule 4.19 of the Victorian Civil and Administrative Tribunal Rules 2008.
3	On 29 May 2019, two companies made seven applications for leave to make a second application for review. Those seven applications were made by Lulu Xu, a director of the two companies. 
4	Six of those applications related to orders made against the companies when the companies had not appeared at review hearings under section 120 of the VCAT Act.
5	The seventh application was, however, misconceived; the order which it sought to be reviewed had been a final order, not an order on an application under section 120 of the VCAT Act.
6	The last hearing of each of the proceedings had been as follows:
Friday, 17 May 2019 at 2.00pm	R2019/12331
		Ye v Kornucopia Pty Ltd
Tuesday, 21 May 2019 at 2.00pm	R2019/43052
		Kornucopia Pty Ltd v Zhu
Tuesday, 21 May 2019 at 2.00pm	R2018/8240
	Wang v The State of Our Times Pty Ltd*
Tuesday, 21 May 2019 at 2.00pm	R2019/8239 
		Lu v The State of Our Times Pty Ltd
Thursday 23 May 2019 at 9.30 am	R2019/13349
		Qin v Abhishek 	Rana Efektiv Pty Ltd
Thursday 23 May 2019 at 10.30 am	R2019/13353
		Tsoi v Abhishek Rana Efektiv Pty Ltd
Thursday 23 May 2019 at 11.30 am	R2019/13369
		Bu v Abhishek 	Rana Efektiv Pty Ltd
*The State of Our Times Pty Ltd was the former name of Kornucopia Pty Ltd.
7	The seventh, misconceived application had been made in R2019/43052 Kornucopia Pty Ltd v Zhu. Although the application was misconceived, the threshold issue which the applicant had to deal with was the same as the issue in the six other applications, namely whether the applicant had a reasonable excuse for not attending or being represented at the hearing. Accordingly, it was appropriate to proceed with the seventh application, amending it to be an application under section 120 of the Act. In the event that the applicant successfully dealt with the threshold issue, but was not prepared to deal with the other issues raised by section 120 of the Act, the application could be adjourned.
8	None of the proceedings was trivial. Of the orders which Ms Xu sought to review:
•	Three were orders for possession of rented premises, with orders to pay rent of $6,942.51, $8,278.92 and $4,181.55, respectively.
•	Two were orders for possession relying on notices to vacate which were based on 120 day notices, given under section 263 of the Residential Tenancies Act 1997.
•	One was an order to pay compensation to a landlord, totalling $6,465.98 (which included rent of $4,442.44).
•	One was an order dismissing a claim by one of the companies as a tenant, for compensation.
9	Of the seven applications filed with the Tribunal, in five, the reason for the application given was that Ms Xu had been ill on the day of the hearing. In one other, the reason given was that notice of the hearing had not been received. In another, that the landlord’s application had not been served to the tenant’s registered business address. When those two applications were heard, however, it was clear that the reason for non-attendance relied on was that Ms Xu had been prevented from attending the hearings by illness.
10	The applications for review had been dismissed over three days, 17, 21 and 23 May 2019. Ms Xu tendered medical certificates for those three days. 
Ms Xu’s evidence: illness
11	Over the course of hearing the seven applications, I formed the view that Ms Xu was an unreliable witness. I formed that view for a number of reasons.
12	In relation to the hearing on 17 May 2019, Ms Xu’s evidence was that she did not attend the hearing because she was ill. The illness was an adverse reaction to a drug prescribed by a doctor at the end of April 2019, producing symptoms of diarrhoea, sleep disturbance, dry mouth and a feeling of pressure on the chest.
13	She said that she had begun to suffer from those symptoms when she started to take the prescribed medicine at the end of April 2019. She said that she had tolerated the symptoms because her doctor had stressed that she should continue to take the medicine, despite side-effects. Ms Xu gave no evidence that, other than on the day of the hearing on 17 May 2019, she had been incapacitated by those symptoms.
14	I note that the medical certificate tendered by Ms Xu for 17 May 2019 is for that day only and makes no reference to any earlier incapacity.
15	I find it improbable that the symptoms described by Ms Xu would be sufficient to prevent her attendance at the hearing on 17 May 2019. I also find that, had her symptoms been sufficiently severe to prevent her attending the hearing on 17 May 2019, it is improbable that she would have tolerated them for the period from late April 2019, as she said she had done.
16	Each of the three medical certificates tendered by Ms Xu came from different medical clinics – two in South Yarra and one in Coburg. Ms Xu lives in Southbank. She said that she had gone to different clinics because she had been unable to get appointments at the one clinic. I find that it is improbable that Ms Xu would need to travel from Southbank to Coburg to find a doctor closer to her home. I also find it improbable that, if Ms Xu were too ill to attend a hearing, she would travel to Coburg to see a doctor.
17	In relation to the three hearings on 21 May 2019, Ms Xu said that she had been ill from flu, which had kept her in bed for one day. Yet the medical certificate tendered by Ms Xu was dated 20 May 2019 and said that she would be unfit for work from 20 to 21 May 2019, inclusive.
18	In summary, I found Ms Xu’s evidence about illness preventing her from appearing to be unsatisfactory. I was also troubled by the evidence which Ms Xu gave about why the companies concerned had not arranged for someone to appear in her stead.
Ms Xu’s evidence: possible other representatives
19	The two companies making the review applications are connected. Kornucopia Pty Ltd and Efektiv Pty Ltd recently appeared before me in the Tribunal’s Residential Tenancies list, on one day, represented by the same individuals.
20	From evidence given to me in the cases on that day, I am aware that Kornucopia Pty Ltd and Efektiv Pty Ltd conduct the business of renting, then letting out, apartments for short-stay accommodation. From the number of proceedings of which I am aware in the Tribunal’s Residential Tenancies list, which involve Kornucopia Pty Ltd and Efektiv Pty Ltd, I find that the business conducted by those companies is probably substantial. I also find that it is probable that those companies would be likely to have employees other than Ms Xu. [In fact, David Mostoklyn, who was present with Ms Xu, described himself as her colleague.]
21	Ms Xu said that no one other than herself had been able to appear for Kornucopia Pty Ltd because she was the sole director of that company. When questioned, she said that there were other staff, but they did not have enough knowledge to represent Kornucopia Pty Ltd.
22	When asked if the rent debts in the various orders had been paid, in relation to one, Ms Xu said that the debt had not been paid. Yet when asked about other rent debts, Ms Xu said that she had no knowledge about the accounts of the business.
23	I found Ms Xu’s evidence about rent debts to be evasive. I also found that it is improbable that the companies did not have personnel available to appear in Ms Xu’s absence, as was claimed by Ms Xu.
Ms Xu’s evidence: corroboration?
24	In view of my concerns about the reliability of Ms Xu as a witness, I concluded that I would not accept Ms Xu’s evidence, unless corroborated.
25	The only corroboration for Ms Xu’s evidence was the three medical certificates which she tendered. None of the three was very informative:
(a)	The certificate for 17 May 2019, from Dr John, said that:
This is to certify that Mrs Lulu Xu is receiving medical treatment and for the period Friday, 17 May 2019 to Friday, 17 May 2019 inclusive she will be unfit to continue her usual occupation.
(b)	The certificate for 21 May 2019, by Dr Moon, said that:
This is to certify that Mrs Lulu Xu has a medical condition and will be unfit for work from 20/05/2019 to 21/05/2019 inclusive.
(c)	The certificate for 23 May 2019, from Dr Eskander, said that:
This is to certify that Mrs Lulu Xu is suffering from a medical condition and for the period from Thursday, 23 May 2019 to Thursday, 23 May 2019 inclusive She is unable to attend her Usual Occupation.
26	The question of medical certificates such as those set out above, was considered by the Federal Court of Australia, in a decision about an application for an adjournment, made in the matter of Nakx and Naky v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. In that decision, Lindgren J considered two certificates, identically worded, which read as follows:
This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.
27	His Honour commented on the certificates as follows:
The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing. 
I do not accept that either of the medical conditions referred to would make the sufferer “unable to attend court” – apparently each was able to attend upon the medical practitioner.
If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
I take into account the fact that the two medical certificates are structured identically, use the expression “he/she”, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
28	Much the same criticisms can be made of the three certificates tendered by Ms Xu. They are positively gnomic in their lack of information and give no basis for Ms Xu’s being unable to attend hearings on the three days in question. Such anodyne, pro forma documents are not sufficient to amount to corroboration of Ms Xu’s evidence which, accordingly, I do not accept. I therefore find that Ms Xu has not proved that she was so ill that she could not have attended the hearings on 17, 21 and 23 May 2019.
29	Even if Ms Xu had been too ill to appear at the hearings, her evidence did not satisfactorily explain why, upon Ms Xu becoming ill, the companies concerned had not arranged to be represented at the hearings. I do not accept Ms Xu’s evidence about the reasons for that failure to be represented. 
The seventh, amended application
30	In view of the findings which I have made above, it is evident that the seventh, amended application, namely for a review under section 120 of the Act, falls at the first hurdle.
Conclusion
31	In summary, I find that the applicant did not have a reasonable excuse for not attending or being represented at the hearings on 17, 21 and 23 May 2019. 
32	In this proceeding, R2019/12331, I will order that the application is dismissed and that the Tribunal’s order of 23 April 2019 is affirmed.
33	In the six other proceedings, I will make similar orders, with appropriate variations.

R. Buchanan
Member